Citation Nr: 1313188 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-38 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hallux valgus. 2. Entitlement to service connection for bilateral hammertoes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to February 1946. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, in which the RO declined to reopen previously denied claims of entitlement to service connection for a fracture of the right big toe and metatarsals and for fallen arches, and denied service connection for bunions and hammertoes. In May 2008, the Veteran filed a notice of disagreement (NOD) only with the denial of his claims of entitlement to service connection for bunions and hammertoes; a statement of the case (SOC) was issued and he perfected an appeal. The appeal was certified to the Board by the RO in St. Petersburg, Florida. In August 2012, the Veteran withdrew his request for a Board hearing. 20 C.F.R. § 20.704(e) (2012). In November 2012, the Board remanded the claims for additional development. In February 2013, the Veteran submitted additional evidence, including a medical opinion from a private podiatrist, newspaper articles and information regarding obtaining military records, a picture of his feet, and duplicate copies of some of his service records and VA records. The Veteran did not request an initial review of this evidence by the Agency of Original Jurisdiction (AOJ). A recent law amended 38 U.S.C.A. § 7105 to allow initial review of additional evidence by the Board unless the appellant specifically requests, in writing, initial review by the AOJ. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, § 501, 126 Stat 1165 (2012) (to be codified at 38 U.S.C.A. § 7105). This provision became effective on February 2, 2013, and is applicable in this case. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the electronic claims file does not reveal any additional pertinent records. 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 Bilateral hallux valgus and hammertoes were not demonstrated in-service, and the preponderance of the evidence is against finding that any current hallux valgus and hammertoe deformity has a nexus or relationship to the Veteran's service. CONCLUSIONS OF LAW 1. Bilateral hallux valgus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Bilateral hammertoes were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist Regarding the Veteran's claims of entitlement to service connection, the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in December 2008 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. In November 2012, the Board remanded the matter, in part, to obtain a VA examination and medical opinion addressing the nature and etiology of the Veteran's bilateral foot disabilities. A VA examination was conducted in December 2012. The examiner reviewed the claims file, noted the pertinent medical history, examined the Veteran, and provided a medical opinion with supporting rationale. For these reasons, the Board finds that all questions necessary to render the determinations made herein have been answered. The medical examination and opinion are therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). The Board points out that a portion of the Veteran's service treatment records are missing. An extract from sick reports indicates the Veteran was seen on seven occasions between March and September 1943, but only the March record is available. VA made several attempts to obtain these records when the Veteran filed his original claim in November 1947, but were unsuccessful. Under these circumstances, the Board is mindful that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). This, however, does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a chronic disease shown in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the Veteran alleges that his bunion and hammertoe deformities manifested in service and are related to ill-fitting footwear worn in service. For the reasons explained below, the Board finds that the preponderance of the evidence is against his claims of entitlement to service connection. The Veteran's service treatment records reflect that at his induction physical in February 1943, his feet were normal. A March 1943 consultation report notes that the Veteran was referred for weak ankles and had a provisional diagnosis of weakened arches. After physical examination, he was diagnosed with first degree pes planus. It was recommended that he have a 1/8" raise in the inner border of both heels, 1/8" raise in the outer border of both soles, and felt insoles. An extract from sick reports reflects that the Veteran was seen six additional times from April to September 1943; however, the actual treatment records are not available. At discharge in February 1946, the Veteran's feet were normal. Post service, the Veteran filed his original claim of entitlement to service connection in November 1947. At that time, he claimed a fungus condition and fallen arches. He stated that he was treated for fallen arches in the summer of 1943 and given special shoes. The RO denied the claim in February 1948 and March 1949 rating decisions. In August 1976, private treatment records from Dr. H. indicate the Veteran was seen for pain in the right foot. The appellant reported that he had a 20-year history of pain in the right foot that had progressively increased in severity. A physical examination revealed bilateral bunions with hallux valgus formation, a loss of the longitudinal arch with "colosities" under both secondary metatarsals. In November 1978, he underwent a Keller bunionectomy of the right foot. In June 1982, the Veteran filed a claim of entitlement to service connection for a fracture of the right big toe and right metatarsal; the claim was denied in a July 1982 rating decision. A November 2002 private treatment record from a private podiatrist, J.M., D.P.M., reflects that the Veteran had significant bilateral bunion deformities with associated contracture of the lesser digits. In January 2003, he underwent a left foot bunionectomy. A September 2008 record from J.M., D.P.M., reflects that the Veteran reported that his bunion and hammertoe pain began during military service in the 1940s. The podiatrist opined that the bunion and hammertoe pain very likely was caused by ill-fitting shoe gear during military service. In a September 2011 letter, the Veteran's wife (E.S.) stated that she had been married to the Veteran since October 1948, two years after his military service. She reported that she recalled the Veteran complaining about the pain in his feet when he was in the Army and that he always mentioned how the injuries to his feet were a result of the boots he wore in service. She said she also recalled that he mentioned going to sick call for his feet. She reported that over the years he had had two hammertoe and bunion surgeries. During the December 2012 VA examination, the Veteran reported that that he started having a foot condition while in basic training, but was unable to specify whether it was a bunion or hammertoe condition. He said that he had some relief after the surgeries and that he had no pain in his feet then but that his left foot arch turned inward. The examiner diagnosed left foot hammertoe status post bunionectomy and hammertoe correction of the 2nd and 4th toes and right foot status post Keller's bunionectomy. After a thorough review of the claims file, the examiner opined that it was less likely than not that the claimed conditions were incurred in or caused by service. The examiner explained that the there was no evidence of a bunion or hammertoe in service or documentation to support chronicity. The examiner considered the private podiatrist's opinion that the Veteran's hallux valgus and hammertoe deformities were caused by ill-fitting shoes in the military. The examiner acknowledged that ill-fitting shoes can cause bunion and hammertoe formation and that this concept is supported by the medical literature, but that there was no documentation to support that either of the Veteran's claimed conditions were incurred during his military service. In a January 2013 letter, another private podiatrist, C.P., D.P.M., indicated that he had reviewed the Veteran's records from his previous podiatrist and available records from VA. He noted that the available records showed a history of previous pes planus with hammertoe and bunion deformities and that the Veteran sustained a fungal infection in service. The assessment was recurrent hammertoe deformities and bunion deformity of the left foot, onychomycosis, pes planus, and painful hyperkeratotic lesions. The podiatrist stated that the Veteran had received periodic debridement of hyperkeratotic lesions and "because of these orthopedic deformities may have occurred due to patient's army boots [sic], onychomycosis condition definitely occurred during patient's military service." As an initial matter, the Board notes that the Veteran is competent to report that which he has personally experienced, including having and being treated for foot problems in service. See 38 C.F.R. § 3.159(a)(2) ; Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, competency is a separate and distinct determination from credibility. To the extent the Veteran asserts that his bunion and hammertoe deformities manifested in service, there are several inconsistencies in the record that brings his credibility into question. First, the available treatment record dated in March 1943 indicates that he was treated for pes planus rather than bunions or hammertoes. Second, the February 1946 discharge examination indicates that his feet were normal. Third, the Veteran's November 1947 original claims of entitlement to service connection were for fallen arches and a fungus condition, not bunions or hammertoes. Fourth, the first record documenting bunion and hammertoe deformities is dated in August 1976. At that time, the Veteran reported a 20-year history of foot pain, i.e., beginning sometime in 1956 and almost a decade after military service. Here, the Board finds that the contemporaneous evidence is more probative than the Veteran's later assertions made during the course of filing a claim for benefits. The Board has also considered the Veteran's wife's September 2011 statement and notes that she is competent to state that she recalled the Veteran complaining of pain in his feet from when he was in the Army. The Board also finds her statements credible as there is evidence that the Veteran was treated for pes planus during service. However, to the extent she reiterates the Veteran's assertions that his bunion and hammertoes were incurred in service, for the reasons explained above, the Board finds that these statements lack credibility and that the contemporaneous evidence is more probative. As noted above, the first medical record documenting a bunion and hammertoe deformity is the August 1976 private medical record - over 30 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The present case involves not simply a lack of clinical evidence, but normal findings at discharge and a time gap of over three decades. The Board acknowledges the Veteran's argument that his February 1946 discharge examination notes "yes" to the question "In your opinion was wound, injury or disease incurred in the line of duty?" However, the condition the report was referencing is unclear and the Veteran's feet were specifically noted to be normal. It appears that reference was to an appendectomy scar and myopia as those are the only "abnormalities" noted. There were no complaints in the wounds and injury box at the top of the form. Based on the foregoing, the Board finds that the preponderance of the evidence does not indicate that the Veteran's bunion and hammertoe deformities manifested in service of for many years thereafter. Furthermore, as bunion and hammertoe deformities are not chronic diseases, service connection may not be considered on the basis of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1337. Therefore, the only remaining issue is whether there is a nexus between the Veteran's current bunion and hammertoe deformities and service. See 38 C.F.R. § 3.303(d). With regard to the question of nexus with service, the Board acknowledges that competing competent evidence has been presented. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Here, as explained below, the Board finds that the December 2012 VA examiner's opinion that the Veteran's current bunion and hammertoe deformities are not related to service is more probative than the opinions of the private podiatrists to the contrary. The Board notes that the VA examiner's opinion was based on a review of the Veteran's service records, pertinent medical history, and a physical examination. The examiner noted and considered the Veteran's assertions regarding the onset of his bunion and hammertoe deformities. The examiner also considered the opinion of J.M., D.P.M. and acknowledged that ill-fitting shoes can cause bunions and hammertoes, but indicated that the evidence did not support that this occurred in service as claimed int his case. Furthermore, the examiner's opinion that it is less likely than not that the Veteran's bunion and hammertoe deformities are related to his service was conclusively stated and is supported by the record. The examiner also provided a detailed rationale. For these reasons, the Board finds the VA examiner's opinion especially probative. On the other hand, the private podiatrists' opinions, while conclusive, are not supported by the record. Rather, the podiatrists' opinions were based on the Veteran's self-reported history that his bunion and hammertoe problems began in service. Neither podiatrist considered or discussed the normal findings at discharge or the time gap of 30 years between service and the first notation of the medical condition. The Board finds that the private podiatrists' opinions are based on an inaccurate factual history and have little, if any, probative value. The Board has also considered the Veteran's assertions that his current bunion and hammertoe deformities are related to his military service. To the extent his statements are supported by the opinions of his private podiatrists, they are competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, such assertions are only as probative as the underlying medical opinions. Here, as explained above, these opinions have been afforded little, if any probative value. In reaching these conclusions, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, service connection for bilateral hallux valgus and hammertoes must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hallux valgus is denied. Entitlement to service connection for hammertoes is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs