Citation Nr: 1312989 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 99-16 017A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1973 and from January 1979 to May 1979, with additional periods of active duty for training and inactive duty training. The Veteran's active duty for training ended in November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 1999, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the Atlanta RO. A transcript of this hearing was prepared and associated with the claims file. In September 2001, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. This claim was originally denied by the Board in a March 2005 decision. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in January 2006, requesting that the Court vacate the Board's March 2005 decision. In a January 2006 Order, the Court granted the joint motion, vacating the Board's March 2005 decision and remanding the case to the Board for compliance with directives that were specified by the joint motion. In November 2006 and March 2009, the Board remanded this case for additional development, and the case has been returned for further appellate review. FINDING OF FACT The Veteran did not exhibit a bilateral foot disability in service, arthritis was not manifested to a compensable degree within one year of separation from service, and a bilateral foot disability is not etiologically related to any injury or disease during the Veteran's service. CONCLUSION OF LAW Service connection for a bilateral foot disability is not warranted. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes evidentiary development letters dated in March 2004 and February 2008 in which the RO advised the appellant of the evidence needed to substantiate his service connection claim. These letters advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. The February 2008 letter further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that neither of these letters was issued prior to the initial adjudication of the Veteran's claim in July 1998, because the VCAA had not yet been enacted. His claim, however, has been readjudicated following the issuance of these notice letters, most recently in an August 2012 supplemental statement of the case. Thus, any deficiencies in the content or timeliness of these notice letters would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's active duty service treatment records and service personnel records, VA medical records, private medical records, and Social Security Administration (SSA) records. VA has also obtained service personnel records from both the Veteran's active duty service and his National Guard service. The Board notes that most of the Veteran's National Guard service treatment records are not available for review. The Board remanded the Veteran's claim in March 2009 in order to attempt to obtain these records. In May 2009, VA sent a letter to the Veteran requesting that he identify the state in which he served, branch of service, and the beginning and end dates of service. In response to this request, the Veteran's representative submitted a letter informing VA that the Veteran had served in the Tennessee Army National Guard from approximately July 1975 through April 1979. An August 2012 memorandum "Formal Finding of Unavailability of Army National Guard Service" describes the steps that were taken to attempt to obtain these records, and the record reflects that the Veteran has been kept informed of these steps and the ultimately unsuccessful results. Of particular note, VA was notified by the Tennessee Adjutant General Office that it had sent the Veteran's medical records to the Department of Veterans Affairs Records Management Center in St. Louis. Based on the contents of the Veteran's National Guard service personnel records, the RO's records request encompassed the period from 1977 to 1981. In August 2012, the Atlanta RO contacted the Records Management Center at the address provided by the Adjutant General Office, and they were notified later that month that the service treatment records were not available. Under such circumstances, where service records have been lost or destroyed through no fault of the veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis in this case has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the case at hand, the Veteran underwent VA examinations in connection with his claim in March 1998, June 2002, and February 2008. The Board finds that, when taken together, these opinions are adequate for the purpose of determining the claim decided herein. The examination reports reflect review of the claims folder. During the examinations, the examiners elicited from the Veteran his history of complaints and symptoms and provided clinical findings detailing the examination results. The examiners also provided diagnoses and etiology opinions and explained the reasons and bases for these opinions. For these reasons, the Board concludes that the March 1998, June 2002, and February 2008 VA examination reports in this case provide an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for a bilateral foot disability. He essentially contends that he has experienced symptoms of foot disability since service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show: "(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 or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21-24) (West 2002); 38 C.F.R. § 3.6 (2012). The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training, and authorized travel to or from such duty or service. 38 U.S.C.A. § 101(21)(A),(E) (West 2002). Active duty for training includes full-time duty in the Armed Forces performed by Reserves for training purposes or full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c)(1),(3) (2012). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101, 106, 1110, 1131. Thus, with respect to his periods of active duty for training and inactive duty training, the evidentiary burden is on the appellant to show that he became disabled from an injury (or a disease in the case of active duty for training service) that was incurred in the line of duty. The January 2006 joint motion for remand found that VA had inadequately complied with the terms of a February 2002 Board development request. In relevant part, the Board had directed that the Veteran be afforded "an orthopedic examination to ascertain the nature and extent of appellant's feet disability, including bilateral bone spurs and to determine whether appellant's disability had its onset or was caused by any incident or event in service." The joint motion notes that, while the examiner had diagnosed "(1) partially compensated rearfoot valgus; (2) compensatory forefoot varus; and (3) "h[istory]/o[f] gout," the examiner did not provide an etiology opinion as to whether these specific disabilities were related to service. Following a summary of the pertinent evidence of record, the Board will ascertain whether the February 2008 examination report that was obtained in response to the joint motion addresses the concerns that were raised by the joint motion and, thus, provides a sufficient basis for deciding the Veteran's claim. The Veteran's service treatment records reflect that his feet were found to be clinically normal at the times of examinations that were conducted in May 1970, February 1971, November 1972, October 1973, and November 1977. (The October 1973 examination was conducted at the time of the Veteran's separation from active duty, and the November 1977 examination occurred in connection with his enlistment into the National Guard. He expressly denied any history of, or current, foot trouble on medical history questionnaires that he completed in May 1970, February 1971, and November 1977. Service treatment records also reflect that, in February 1971, the Veteran sought treatment for a bruise at an unspecified metaphalangeal joint after complaining that his foot was hurting and had a red mark. He was put on light duty for three days. It is unclear whether this bruise was on his left foot or right foot. The Veteran was treated for a right foot bruise in October 1972 after injuring his foot one day earlier while playing football. On examination, there was mild swelling but no erythema over the dorsum of the foot. He had full range of motion, sensation, and pulses distally. It was noted that no x-rays were required. He was given an Ace wrap and told to treat his injury with rest, elevation, and medication, and he was placed on light duty for four days. Records also reflect that he was placed on medical restriction from flight duty for right foot pain twice in October 1972. The earliest post-service medical evidence of a foot disability appears in a December 1996 private treatment record that reflects the Veteran complained of right foot pain, swelling, and discomfort. He denied any associated trauma to the area. A January 1998 VA radiology reports shows minimal spurring at the plantar aspects of the calcaneii of both feet and minimal spur formation at the posterior aspect of the right calcaneus. No fractures were identified. There were surgical clips projecting anteromedially to the medial malleoli in both feet. According to a March 1998 VA orthopedic examination report, the Veteran stated that he had a history of pain and tingling in both feet since service. He denied any distinct foot injury. The assessment was bone spurs as evidenced on x- ray studies. This assessment remained unchanged following the examiner's review of the claims file. A July 1998 record reflects that the Veteran complained of bilateral heel pain. He denied any associated trauma. X-ray studies of both heels were positive for intracalcaneal spurring. The impression was plantar fasciitis. X-rays taken in April 1999 show spurring at the plantar aspect of the left calcaneus and the posterior aspect of the right calcaneus. During his March 1999 DRO hearing, the Veteran testified that he did not know when he injured his feet in service, but that he was placed on limited duty and issued "low quarters shoes" because of problems with his boots. He testified that he currently receives arch supports from VA. The Veteran was treated for gout in December 2000. During his November 2001 Travel Board hearing, the Veteran testified that he could not remember a specific injury to his feet in service, but that his service treatment records clearly show that he was treated for foot complaints. He testified that he was given a permanent profile for his bilateral foot disability and that he suffered a stress fracture of his left foot in service. During a June 2002 VA podiatry examination, the Veteran gave a history of having been taken off flight status three times in service due to sprained ankles. He also reported having been diagnosed with a left foot fracture one and a half years earlier. The diagnoses included partially compensated rearfoot valgus, compensatory forefoot varus, and history of gout. The examiner opined that the Veteran "has not suffered a disability regarding the bilateral bone spurs; either during his period of active duty and/or resulting from any incident or event that occurred during the same time period." He noted that "[o]n examination, no pain was noted to the expected location of such a claim." He further opined that the Veteran has "an abnormality in his forefoot to rearfoot relationship, which is as least as likely as not to have contributed to his overall foot pain." The examiner opined that the Veteran had not suffered a disability associated with bilateral bone spurs in service or as a result of any incident or event in service. Following the January 2006 joint motion, the Veteran underwent a VA examination in February 2008 for the purpose of determining the etiology of any currently-diagnosed foot disability. The examination report reflects that the examiner reviewed the claims file and that the Veteran described his pertinent medical history. Following his return from Vietnam in 1972, the Veteran felt a stinging on the bottoms of both feet that felt like his feet were trying to fall asleep; these symptoms originally only occurred with prolonged standing. He was told by an Army doctor that he had sprained both of his feet, and he was given Aspirin without relief. He reported that he experienced in 1979 while with the National Guard and that he was placed on profile secondary to aching and throbbing on the bottoms of both feet. He was placed on light duty and wore "low quarters" which resulted in a 90 percent improvement of his symptoms while he was off of his feet but that his symptoms would return to the previous level when he returned to ambulation. He denied stretching, icing, inserts, or heel pads at that time. The Veteran reported that he next received therapy at the VA Medical Center in Atlanta in 1998 secondary to sharp pain on the bottom of the left foot. He denied trauma to the region and was diagnosed with stress fractures of the left foot, was placed in a Cam-Walker boot for six to eight weeks, and used a wheelchair. He felt a 40 percent improvement in his pain following therapy. He reported that he currently experiences a stinging in the ball and heel regions of both feet with prolonged walking and standing. He denied pain in the back of either heel. He related that he has used silicone heel pads, custom insoles, two cortisone injections in each heel, and custom shoegear. The Veteran underwent a thorough physical examination of both feet, the results of which are described in detail in the February 2008 examination. A radiology report noted an impression of hallux valgus deformity with bilateral degenerative changes and diffuse soft tissue edema. The examiner assessed asymptomatic inferior and posterior calcaneal bone spurs bilaterally and mild degenerative joint disease of the bilateral feet. The examiner opined "that the veteran has not incurred a disability in either foot which had its onset during his period of active duty service or was caused by any incident or event that occurred during his period of service[,] including bilateral bone spurs." The examiner cited his review of the claims file, specifically noting that the Veteran's 1973 examination demonstrated a finding of normal feet, as well as the examiner's own "clinical examination in which no pain with motion of the pedal joints or palpation of the pedal structures were noted." The examiner stated that he "would be resorting to mere speculation as to whether or not the bone spurs or degenerative changes were present during his period of active service without having plain films or a report to evaluate from that time frame." The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the case at hand, the Board finds that the February 2008 VA examination report is highly probative to the question of whether the Veteran has a current foot disability that is linked to his military service. The Board notes that the VA examiner who conducted this examination is a podiatrist who possesses the necessary medical expertise to provide the requested opinion. This opinion is based in part on the examiner's personal examination and interview of the Veteran. The examination report also contains detailed descriptions of the findings on examination and of the Veteran's pertinent medical history. The report also reflects that the examiner reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence. The VA examination report provides clear diagnoses and persuasive rationale for any etiology opinions, specifically describing the nature of the current disabilities and the findings that justify the negative nexus opinions. The Board has considered the adequacy of the examiner's opinion in light of his conclusion that he "would be resorting to mere speculation as to whether or not the bone spurs or degenerative changes were present during his period of active service without having plain films or a report to evaluate from that time frame." The Court has held that, when a medical examiner concludes that he or she is unable to provide a nexus opinion, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, as highlighted above, the examiner has explained specifically why he is not able to offer an opinion as to the etiology of the Veteran's bone spurs or degenerative changes. Specifically, he cited the absence of plain films or a report from that time period as the reason he was unable to offer an opinion without resorting to speculation. The Board notes that such evidence is not available, and it thus finds that the examiner's opinion and rationale are adequate for the purpose of determining entitlement to service connection in this case. In direct consideration of the terms of the January 2006 joint motion, the Board observes that the February 2008 examination report does not expressly state that the partially compensated rearfoot valgus, compensatory forefoot varus, and history of gout that were noted on examination in June 2002 are or are not related to the Veteran's service. The Board finds, however, that the examiner's opinion "that the veteran has not incurred a disability in either foot which had its onset during his period of active duty service or was caused by any incident or event that occurred during his period of service[,] including bilateral bone spurs," satisfies the directive of the joint motion. Unlike the June 2002 report, which expressly limits its etiology opinion to a finding that the Veteran "has not suffered a disability regarding the bilateral bone spurs" that is related to service and expressly excluding consideration of the etiology of any non-bone spur foot disability, the February 2008 report expressly states that the Veteran "has not incurred a disability in either foot ... including bilateral bone spurs" that is related to service. [Emphasis added.] The February 2008 opinion encompasses any current foot disability, while the June 2002 opinion only pertains to bilateral bone spurs. The February 2008 opinion thus satisfies the January 2006 joint motion's instruction that VA obtain an etiology opinion with respect to the issues of rearfoot valgus, compensatory forefoot varus, and history of gout. The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between current bilateral foot disability and his military service. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, as a layperson, the Veteran is not competent to assert a causal link between any current foot disability and service, especially considering that the Veteran has expressly stated that he does not remember having suffered a specific foot injury in service to which he could link any current disability. In summary, the Board finds that a preponderance of the evidence is against finding a link between a current bilateral foot disability and the Veteran's military service. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for a bilateral foot disability is not warranted. ORDER Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs