Citation Nr: 1312640 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-25 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of a fracture of the left foot. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1955 and from September 1956 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the remand portion of the August 2012 decision, the Board requested that the RO afford the Veteran an examination to determine if there is any relationship between an in-service injury and his current left foot disorder. The RO afforded the Veteran an examination in January 2013 and the report of that examination is substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141 (1999). 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). FINDING OF FACT A left foot disorder, to include degenerative arthritis, did not have its onset during active service or within one year thereafter, and it is not related to any incident of such service. CONCLUSION OF LAW The criteria for service connection for residuals of a fracture of the left foot have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in April 2006 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in October 2006. Nothing more was required. 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 treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA also provided the Veteran with an examination in January 2013 to determine the nature and etiology of his left foot disability. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be adequate upon which to base a decision o the claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history, and provided the information necessary to decide the claim. A thorough opinion was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the private and VA medical records in the claims file as well as the Veteran's own statements. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. 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). Service Connection Service connection may be granted for 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); 38 C.F.R. § 3.303(a) (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). In this case, one of the diagnosed disorders at issue, degenerative arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptomatology" after service, the disease shall be presumed to have been incurred in service. 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. If a disorder noted during service is not shown to be chronic, then generally a showing of "continuity of symptomatology" after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Where a veteran served for 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year from the date of separation 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 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence of (1) a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the Veteran contends that he fractured his left foot in the early 1950s while serving in the Navy and that injury was the cause of recent stress fractures. The Veteran's service treatment records do not show any complaints, findings, or diagnoses of a left foot disorder. A June 1955 examination during his separation from his first period of active service shows a normal evaluation of the feet. He denied having any foot trouble during a September 1956 examination prior to his second period of active service and evaluation of the feet was again normal. He denied having any foot trouble during his April 1972 retirement examination and evaluation of the feet was again normal. The only reference to the left foot is an October 1957 treatment note showing complaints of pain in the left ankle with numbness over the lateral aspect of the foot. However, those symptoms appear to be related to his left ankle and he was not diagnosed with a foot disorder. Given the above, the record fails to show that the Veteran suffered an injury to his left foot during service. However, as noted in the August 2012 remand, the Veteran is competent to report that he sustained an injury to his left foot during service. 38 C.F.R. § 3.159(a) (2012). Further, a July 1953 letter from the Veteran to his parents shows that he fractured his foot the previous afternoon while playing volleyball, landing on the side of his foot after jumping up to spike the ball. Although the letter does not specify which foot, resolving doubt in the Veteran's favor, the Board finds that he injured his left foot during service. The Veteran's post-service medical records do not show any complaints, findings, or diagnoses of a left foot disorder for over three decades after service. An April 2005 private treatment note shows complaints of swelling with pain in the left ankle for the past three months and a diagnosis of rule out stress fracture of the left ankle. An April 2005 bone scan shows an area of increased uptake of the radionuclide involving the proximal aspect of the first metatarsal of the left foot. The impression was that the findings suggested increased metabolic bone activity commonly seen with healing fractures. April 2005 x-rays of the left foot show no acute fractures or dislocations. A private treatment note later that month shows a diagnosis of a fracture of the first proximal metatarsal of the left foot. Then, April 2006 private treatment notes show complaints of pain in the lateral aspect of the left foot. Given the above, although the Board has conceded that the Veteran sustained an injury to his left foot during service, the service treatment records are negative for left foot problems and the post-service medical records contain no mention of left foot problems until April 2005, over 30 years since his retirement from service and almost 50 years since the end of his first period of service during which the injury occurred. The Board acknowledges the Veteran's assertion that he has had problems with his left foot since active service. The Board notes that the Veteran is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran is claiming to have experienced continuous pain in the left foot since active service, he is not found to be credible. Again, he did not complain of left foot problems during either period of service, including during his retirement examination, and separation examinations revealed normal feet. There is also no medical evidence of a left foot disorder after discharge until April 2005. Lastly, if he had experienced left foot problems continuously since service, it would be reasonable to expect that he would have filed a disability claim much sooner than in March 2006. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Given the above, the Board finds that the Veteran's statements alleging or implying continuity of symptoms are not credible. Therefore, continuity of symptomatology is not established by either the competent evidence or his own statements. Thus, the Board finds that a left foot disorder, to include degenerative arthritis, did not have its onset during active service or within one year thereafter. The remaining question is whether such disorder is otherwise causally related to service. In a December 2008 letter, a private physician related that the Veteran fractured his left foot during service and continues to have intermittent pain in that foot. During a January 2013 VA examination the Veteran complained of pain along the lateral half of the left forefoot. He stated that the pain started in service in the early 1950s when he was running across the deck of the ship and hit a tie-down and injured the outside of the foot. He reported having occasional pain in the left foot at that location ever since. He also reported similar pain in the right foot but stated that that was of a more recent onset. Examination showed tenderness to firm palpation along the distal half of the third, fourth and fifth metatarsals of the left foot, and the same findings of tenderness on the right foot. There was also similar tenderness diffusely of both feet. The feet were similar in appearance. The examiner provided a diagnosis of degenerative arthritis of both feet. The examiner noted the Veteran's report of injuring the left foot in service but stated that the service treatment records do not document any foot problems. The examiner noted the Veteran's report of left foot pain since service but stated that the current symptoms and findings are very similar in both feet. The examiner noted that x-rays of the feet show degenerative arthritis in multiple areas without any findings specific to the area of the in-service injury, and that x-ray findings are similar between the left and right feet and not unusual for someone of the Veteran's age. The examiner stated that the in-service injury is one that would be expected to heal without residuals based on the Veteran's description of the injury and his age at the time. The examiner then opined that the Veteran does not have any residuals of the in-service injury. The examiner further opined that no current foot condition, to include degenerative arthritis, is related to the in-service injury. Here, the Board notes that VA x-rays of the left ankle taken in May 1973, seven months after the Veteran's retirement from service, showed angulation of the ankle mortise that was interpreted as being most likely due to trauma. As the record was unclear as to whether that angulation was the result of the in-service injury, in the remand portion of the August 2012 decision, the Board requested a medical opinion on the matter. In the above examination report, the examiner noted that the service treatment records show a history of a left ankle fracture prior to service in 1947 that required casting and stated that the location of the mortise angulation is in the appropriate location to be related to that pre-service injury. The examiner opined that the pre-service ankle injury is the most likely cause of the angulation seen in 1973. The examiner further opined that, as the Veteran denied any ankle symptoms related to the in-service foot injury, current foot symptoms are not related to the ankle abnormality in question. Given the above, although the Veteran injured his left foot during active service, the record fails to show that he has any residuals from that injury. Although a private physician related the Veteran's current left foot disorder to service, the Board observes that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406 (1995). Thus, the Board finds the December 2008 letter to be of little to no probative value. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190 (1992)). On the other hand, a VA examiner opined that the Veteran does not have a current left foot disorder, to include degenerative arthritis, related to the in-service left foot injury. The examiner further opined that the Veteran does not have any residuals of the in-service injury. Those opinions are supported by a detailed rationale. Thus, the Board finds the opinions to be of great probative value. See Hayes v. Brown, 5 Vet. App. 60 (1993). Thus, the Board finds that the weight of the probative medical evidence shows that a left foot disorder, to include degenerative arthritis, is not related to any incident of active service. In conclusion, service connection for residuals of a fracture of the left foot is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a fracture of the left foot is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs