Citation Nr: 1311445	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  09-03 802	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for residuals of a non-displaced fracture of the right third metatarsal.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law.


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel



INTRODUCTION

The Veteran served on active duty from April 1970 to January 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota.

By a February 2011 Board decision, an application to reopen a previously denied claim was reopened, and the case was remanded for further evidentiary development.  Following a May 2012 supplemental statement of the case (SSOC), the claim was returned to the Board.  In an August 2012 decision, the claim was remanded for further evidentiary development.  As will be discussed below, review of the record reflects substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The RO continued the previous denial in a November 2012 SSOC.  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.


FINDING OF FACT

Residuals of a non-displaced fracture of the right third metatarsal, to include arthritis, were not manifested in service or until years later and are not otherwise attributable to the Veteran's active service.


CONCLUSION OF LAW

Residuals of a non-displaced fracture of the right third metatarsal, to include arthritis, were not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With respect to the claim on appeal, a pre-decisional notice letter dated in July 2007 complied with VA's duty to notify the Veteran with regard to this issue.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, in the July 2007 letter, the RO informed the Veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon this issue.

Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), as well as VA and private treatment records in furtherance of his claim.

There is no indication that any additional action is needed to comply with the duty to assist.  The Veteran was afforded a VA examination in April 2011 as well as a VA medical opinion in November 2012 as to his service connection claim.  The medical opinions reflects that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered opinions which appears to be consistent with the remainder of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the April 2011 VA examination report and November 2012 VA medical opinion are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In December 2012, the Veteran's representative asserted that the Veteran did not attend a November 2012 VA examination as he would remember doing so because it would have involved a 70 mile drive.  The Board notes that no examination was conducted in November 2012.  Rather, as pursuant to the Board's August 2012 remand, the claims file was forwarded to the same VA examiner who already conducted an examination in April 2011.  An opinion was requested as an examination had already been conducted.  Thus, the Board does not find it necessary to remand the claim for another examination or opinion and VA's duty to assist has been met.

II.  Analysis

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, 492 F.3d at 1377.

Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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).  For the showing of a '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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term 'chronic disease', whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Here, the Veteran has asserted entitlement to service connection for residuals of a non-displaced fracture of the right third metatarsal, which he contends is due to his military service.  In a July 2004 statement, he claimed that his in-service right third metatarsal fracture resulted in residuals, including arthritis, which has continued to the present day.

For the reasons set forth below, the Board concludes that service connection is not warranted for residuals of a non-displaced fracture of the right third metatarsal, including arthritis.

STRs from the Veteran's period of active military duty show that he was seen at the dispensary in May 1970 with complaints of pain in the right foot; he stated that he was marching when another recruit stumbled against him, giving him an unbalanced strain on the right foot.  Following an evaluation, the Veteran was diagnosed with a stress fracture of the right third metatarsal.  The Veteran reported a medical history of 'foot trouble' at the time of his December 1971 service separation examination; however, the report also noted "no significant problems" as to his feet.  Additionally, the clinical evaluation of the feet and lower extremities conducted at the time was normal.

Post-service treatment records indicate that the Veteran complained of chronic foot pain.  Notably, an x-ray of the bilateral feet, conducted in March 2005, revealed mild degenerative joint disease (DJD) of the first left metatarsal phalangeal joint; however, the right foot was normal.  During a clinical visit in August 2005, the Veteran reported suffering a broken metatarsal of the right foot in service; he stated that the pain in his right foot may be related to that previous foot injury.  The assessment was pes planus; the examiner stated that the pes planus was likely the etiology of his pain.  A podiatry consultation report dated in November 2004 indicated an assessment of plantar fasciitis, right worse than left.  In February 2009, the Veteran was diagnosed with bilateral plantar fasciitis, neuritis with interdigital nerve pain, and chronic foot pain.

In a February 2008 letter, Dr. G.J.M. indicated that x-rays of the bilateral feet "revealed a mild to moderate pes planus deformity, hallux limits within the left first metatarsal phalangeal joint."  He stated that he did not see anything "that would suggest a pas[t] injury on his right foot that would keep him from his activities as well."  Dr. G.J.M. continued, "[i]n my opinion, I do not think the pre-existing pes planus deformity or the injury that occurred in 1970 would be related to any current discomfort or problems that he may have with his feet.  I was able to review his service medical records as well to come up with this opinion."

The Veteran was afforded a VA examination in April 2011.  The examiner reviewed the Veteran's claims file and conducted a complete interview and physical examination of the Veteran.  Contemporaneous x-rays conducted of the Veteran's right foot revealed calcaneal enthesophytes.  The examiner diagnosed the Veteran with "status-post nondisplaced fracture of the right third metatarsal, well-healed, without evidence of residuals or sequelae; pes planus, mild; and plantar fasciitis."  The examiner explained that the Veteran "currently demonstrates no significant DJD of the right foot (per most recent plain film x-ray of right foot)."  He noted that the current diagnosis of bilateral plantar fasciitis "would indicate that this is a condition of both feet and not specifically isolated to the right foot such as to indicate an acquired condition that is due to or a direct result of previous fracture, or injury, or trauma to the right foot that may have occurred while on active duty."  The examiner further stated that "[i]t is this examiner's opinion that, although the Veteran clearly has a history of sustaining a nondisplaced stress fracture of the right third metatarsal in 1970 while on active military duty, that this condition responded to appropriate treatment at the time and has healed without residuals or sequelae."  He therefore concluded, "[i]t is at least as likely as not that the Veteran's foot complaints and symptoms stem from his plantar fasciitis/pes planus condition."  He further opined, "there are no current residuals that are a direct result of this previous [in-service] injury."

Subsequent review of the record showed VA treatment records dated from May 2011 which document a diagnosis of "mild arthritis of the tarsometatarsal joints of the right foot."  As these records were not associated with the claims file at the time of the April 2011 VA examination report, the Veteran's claim was remanded by the Board in order to afford the Veteran an addendum VA medical opinion.  Accordingly, after a review of the claims file, including the most recent VA treatment records, the November 2012 examiner indicated that "although the Veteran clearly has a history of sustaining a nondisplaced stress fracture of the right third metatarsal in 1970 while on active military duty, that this condition responded to appropriate treatment at the time and has healed without residuals or sequelae."  The examiner continued, "[i]t is this examiner's opinion that there is no medical evidence to support that any noted DJD (arthritis) of the right tarsometatarso joint(s) is due to, a result of, or aggravated by previous right third metatarsal fracture."  He explained, "[r]easoining and basis for this opinion is that x-ray evidence of the feet demonstrate arthritis of the tarsometatarsal (TMT) joints bilaterally, without any evidence of complications of any previous right third metatarsal stress fracture.  It is unlikely, therefore, that a well healed stress fracture isolated to the right third metatarsal would ultimately result in bilateral degenerative joint changes (arthritis) of the tarsometatarsal joints of the feet bilaterally."  He further opined, "[i]t is this examiner's opinion that the Veteran's DJD/arthritis of the feet, including right tarsometatarsal joint arthritis (DJD) has developed over the past number of years and is independent of any stress fracture that involved the right third metatarsal in 1970, which was treated and responded to appropriate treatment without any recorded evidence of residuals or sequelae.  There is no other medical evidence to support that current right TMT joint arthritis is due to or aggravated by military service."

Crucially, the Veteran has not produced a medical opinion to contradict the conclusion set forth in the April 2011 VA examination report and November 2012 VA medical opinion concerning the issue of medical nexus.  As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his residuals of non-displaced stress fracture claim.  He has not done so.  See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits).  Thus, the April 2011 VA examination report and November 2012 VA medical opinion stand unchallenged as competent medical evidence on the crucial question of medical nexus.

The Veteran has submitted his own statements to support his claim of service connection.  To this end, the Board notes that as a lay person, the Veteran is competent to testify to observable symptoms.  See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr, 21 Vet. App. 303, 312; Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to his military service.  See Buchanan, 451 F.3d at 1331-37; see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992).  Therefore, to the extent that the Veteran is claiming that his residuals of a non-displaced stress fracture to the right third metatarsal is the result of his military service, laypersons without medical training, such as the Veteran is not competent to comment on medical matters.  See 38 C.F.R. § 3.159(a)(1).  The Board further observes that the Veteran's contentions in support of service connection including continuing post-service symptomatology are contradicted by the findings of the April 2011 VA examination report and November 2012 VA medical opinion which specifically considered the Veteran's lay assertions and any such inferences contained in the record in rendering the negative nexus opinion.

Although the Veteran is currently diagnosed with DJD/arthritis of the tarsometatarsal joints of the right foot there is no documentation that he was diagnosed with a degenerative disease including arthritis during his military service or for decades thereafter.  The Board has considered the Veteran's lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan, 451 F.3d at 1331-37.  Moreover, the Board recognizes that as with 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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).  Crucially, however, there is no evidence that the Veteran was diagnosed with DJD or arthritis in the right foot during his military service or for decades thereafter.  C.f., Walker, 708 F.3d at 1331.  Moreover, the November 2012 VA medical opinion explicitly considered the Veteran's contentions of continued arthritis symptomatology dating from his in-service injury and determined that it is "unlikely that a well healed stress fracture isolated to the right third metatarsal would ultimately result in bilateral degenerative joint changes (arthritis) of the tarsometatarsal joints of the feet bilaterally."  Accordingly, the Board finds that the November 2012 VA opinion, which was based in part on the Veteran's history, is more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began.

The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise.  Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA examination report and medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value.

In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from residuals of a non-displaced stress fracture of the right third metatarsal, to include arthritis, that are related to his active military service.  This is so on a direct basis and regarding presumptive service connection pertaining to chronic diseases.  Thus, the benefit-of-the-doubt rule is not applicable to the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for residuals of a non-displaced fracture of the right third metatarsal, to include arthritis, is denied.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs