Citation Nr: 1314239 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-12 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for an acquired psychiatric disability. 4. Entitlement to service connection for residuals of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty with the California National Guard from February 1977 to September 1977. She had additional periods of active duty for training and inactive duty training with the Army National Guard of California from June 1976 to February 1977 and from September 1977 to October 1997, and with the United States Army Reserve from October 1997 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In November 2009 and May 2011, the Board remanded this case for additional development, and the case has been returned for further appellate review. The record reflects that, during the course of this appeal, the Veteran changed her power of attorney from Disabled American Veterans to California Department of Veterans Affairs in early 2008. A copy of the VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," dated in August 2008, has been associated with the claims file. A review of the Virtual VA paperless claims processing system reveals a March 2006 notice letter that is pertinent to the present appeal. It was provided prior to the initial adjudication of the Veteran's claim in May 2006. The information contained in this letter is duplicative of information that was subsequently provided in a January 2008 letter. After the Board remanded this case in May 2011, the Veteran reiterated her argument that she experienced a concussive injury during ACDUTRA in August 2004 which involved loss of consciousness. She has also described recent radiographic findings of brain abnormalities. As more fully addressed in the REMAND section of this decision, the Board finds that the Veteran's allegations potentially involve an issue of entitlement to service connection for TBI residuals - the symptoms of which potentially overlap with the service connection claims involving headaches and emotional dysfunction. Thus, the Board finds that the issue of TBI residuals is part of the service connection claims raised on appeal, but will be listed as a separate claim on the title page for clarity and administrative purposes. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for headaches, an acquired psychiatric disability and TBI residuals are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current left foot disability, status post status post neuroma resection, results from ACDUTRA injury. CONCLUSION OF LAW The criteria for service connection for a left foot disability have been met. 38 U.S.C.A. §§ 101(21-24), 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act 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)). Given the favorable disposition of the left foot disability claim, which is the only claim being decided on appeal, there can be no prejudicial harm stemming from any perceived VCAA error. II. Service Connection 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). Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). 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). 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). The term "inactive duty training" includes duty (other than full-time duty) prescribed for Reserves. 38 U.S.C.A. § 101(23)(A). It also includes special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned. 38 U.S.C.A. § 101(23)(B). A pre-existing disease will generally be considered to have been aggravated by active 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 progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). However, the presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record as every item of evidence does not have the same probative value. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran has claimed entitlement to service connection for a left foot disability. She contends that this disability was caused by the boots she had to wear and the marching she had to do while in service. The Veteran's service treatment records reflect that her feet were clinically normal upon her June 1976 enlistment in the National Guard, her August 1977 release from active duty, her January 1993 "over 38," and her May 1998 "over 40" examinations. She expressly denied any history of, or current, foot trouble on her August 1977 release from active duty medical history report. She endorsed a history of, or current, foot trouble on her January 1993 "over 38" medical history report, noting that she had suffered a stress fracture of the left foot that was receiving ongoing evaluation. Private records from 1993 reflect that the Veteran sought frequent treatment for left foot problems. A barely legible March 1993 bone scan report found findings compatible with a stress fracture. A private radiology and operative report from April 1994 reflects that the Veteran had an arthroplasty of the left foot and a neurectomy of the second interspace. A March 1996 private progress report notes that the Veteran was experiencing persistent pain at the base of the second toe on her left foot, and that this pain was aggravated by increased physical activity, including sports. She was most concerned about her Reserve status, and it was noted that permanent limitations were advised on her last visit. Symptoms were unchanged, but pain was increased, from her last visit. On examination, she was found to have no edema, and there was full range of motion of the second metatarsalphalangeal (MTP) joint with pain. There was pinpoint tenderness at the base of her second toe. Findings on an April 1996 left foot magnetic resonance imaging test (MRI) reflect post-surgical changes to the Veteran's left foot and suggest the presence of scar tissue. Otherwise, no significant abnormalities were noted. The Veteran underwent a neurectomy of the second intermetatarsal space and a resection of the base of the second proximal phalanx. The post-operative diagnosis was probable neuroma, second intermetatarsal space, and osteochondral lesion, second metatarsal head. An August 1996 private podiatry letter reflected the Veteran's treatment history of intractable left foot pain since December 1992 with surgery in 1994. Despite the surgical treatment, the Veteran continued to have pain limitation of the left foot which prevented her from being able to participate in the usual physical activities of calisthenics. The podiatrist recommended a permanent limitation of duties for no running as well as walking limited to 20 minutes to two hours per day. A February 1998 service treatment record notes that the Veteran had pain in the left foot develop in 1992 and had surgery in 1994 for neuroma. She had experienced some resultant chronic pain. She reported that she had not consulted an Army physician in connection with these symptoms. On examination, a scar was found on the plantar surface of her left foot between the second and third toes. This scar was tender to palpation, and the Veteran was assessed as having chronic left foot pain. The Veteran reported a history of, or current, foot trouble on a May 1998 medical history report, noting her left foot surgery in 1994. It was noted that she requires a "T3" profile for her foot problems. A May 1998 physical profile notes that the Veteran had chronic left foot pain, status post surgery. She was assigned a permanent profile prohibiting mandatory physical activity. A July 2001 private medical record notes that the Veteran sought treatment for right forefoot pain and a history of left foot stress fracture. It was noted that she was in the Reserves and went on marches. She reported a history of, or current, foot trouble and foot surgery on her April 2003 Army Reserve retention medical history report, again noting that she had surgery on her left foot in 1994 due to a stress fracture and tumors that needed to be removed. The April 2003 Army Reserve retention examination report notes that she had a foot callus and scar on the ball of her foot and that her left foot was less flexible than the right foot in all motions. A February 2004 private medical record notes that the Veteran sought treatment for foot cramps that caused difficulty walking. She had been experiencing them for five months. They were occasional, but they were worsening and becoming more frequent. A May 2004 service treatment record reflects that the Veteran was placed on permanent profile for foot pain and bilateral shoulder pain. Another May 2004 record reflects that the Veteran reported having had a left foot problem from approximately 1992 to 1994 and lasting through the present. Physical Evaluation Board (PEB) proceedings from March 2005 note that the Veteran "[c]annot meet the physical requirement required of all Soldiers due to her disabilities." A notation of "Non-Duty Related" appears at the top of this record. The Veteran did not concur with the PEB findings. She withdrew her objection to the informal rating of "UNFIT," but she disputed the characterization of her case as "Non-Duty Related." In the course of this dispute, she submitted an April 2005 statement noting that her left foot was hurt while performing physical training in military boots, which caused her to be in and out of a cast for nearly two years and eventually led to surgery and extensive physical therapy. There is no indication of record that the "Non-Duty Related" designation was ever changed. Post-service medical records reflect that the Veteran suffered an injury to the fifth toe on her left foot. This injury was determined to have unlikely been a fracture. According to the February 2006 VA examination report, the Veteran reported that she had a left foot neuroma resection in 1992. She reported that the area still hurt and that she had daily foot cramps of a severity of 10/10. The pain limited long periods of walking or standing at work and at home. Following a thorough physical examination, the examiner diagnosed status post neuroma left foot with pes planus. The Veteran underwent a VA foot examination in June 2010. The examiner noted that the Veteran reported having developed bilateral foot pain in basic training in 1976. She had tendinitis of the posterior aspects of the feet and developed pain across the medial horizontal longitudinal arch of both feet and on the balls of the toes, particularly the great toes when she was running in service in boots. While she was in the National Guard in the 1990s, "she was running in boots doing physical training when she developed a sudden cracking sensation across the bottom of her mid foot in the third or second metatarsal distally. She cannot recall the details." She was found to have a left foot stress fracture in 1992, at which time she was working in a sedentary position in civilian life." The examiner noted that "[t]he only possible cause of injury would have been running in service as far as [the Veteran] relates." The Veteran had surgery in 1994 at the time she was in the National Guard. She developed numbness of the second, third, and fourth metatarsals and experiences pain while on her feet all day at work. She reported that, as far as she is aware, she has had no other injuries or disability to the feet. It was noted that "[t]he veteran states that her bilateral foot disability is related completely to service as it initially presented in 1976 and got worse in 1992; all during episodes of running, particularly running in boots." She reported she can longer wear running boots. The examination report contains a detailed description of the Veteran's reported functional limitations and the findings on physical examination. The examiner assessed bilateral pes planus, left foot callus, status post neuroma resection of the left foot, and bilateral mild bunions and mild hallux valgus. The examiner opined that, "[g]iven the available history, information, and examination, and the evidence available in the [claims] file it is more likely as not her current foot disability is related to terms in service." He explained that "[s]he was in a sedentary work position when she developed pain while running while in Reserves in boots and there is no other source of disability for us to apportion disability in her case." He concluded that, "[g]iven this cluster of circumstances, therefore it is more likely than not her current foot disability is related to service." 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). The Board further notes that it may reject a medical opinion that is based on facts that have been found to be inaccurate or that are contradicted by other facts of record. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on lay statement renders a medical report incredible only if the Board rejects the credibility of the lay statements). The Board notes that the June 2010 VA examination report is based on the examiner's review of the record and on his interview and examination of the Veteran. He offers a diagnosis and etiology opinion that he supports through citation to the record and the appellant's assertions. Its probative value is highly diminished in some respects, however, by its reliance on facts as related by the Veteran that are inconsistent with the remaining evidence of record. In particular, the Board notes that the June 2010 opinion cites the Veteran's report of having had foot problems since 1976. The medical evidence of record, however, including the Veteran's service treatment records and the private medical evidence from that period, reflects that the Veteran's left foot problems began in 1992. The relevant evidence includes an August 1977 medical history report from her release from active duty in which the Veteran expressly denied past or current foot trouble. Additionally, the Veteran's own recorded statements to her treating podiatrist describe the onset of intractable left foot pain in 1992. Nonetheless, the Veteran has described experiencing "a sudden cracking sensation" in her left foot during a period of ACDUTRA training. The Board finds no evidence corroborating this statement and no specific evidence impeaching her testimony on this issue. It seems clear from the podiatry records that the appellant's left foot symptoms were being exacerbated by physical activity, which by all accounts was limited to ACDUTRA duties involved forced marches and physical training. Based on these activities, the VA examiner found that it was "more likely as not her current foot disability is related to terms in service," including running in boots during the Reserves, as there was no other source of injury apparent in the record. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current left foot disability, status post status post neuroma resection, results from ACDUTRA injury. The claim, therefore, is granted. ORDER Service connection for left foot disability is granted. REMAND In a statement received in August 2011, the Veteran reported having undergone a magnetic resonance imaging (MRI) scan of the head which reportedly showed "multiple sclerosis." She indicated that she would forward these results after an upcoming neurology examination scheduled later that month. In September 2012, the Veteran forwarded an authorization for VA to obtain additional records from Kaiser Permanente. At the same time, the Veteran returned a supplemental statement of the case (SSOC) notice letter describing having no other information or evidence to submit in support of her claim. The Board will defer adjudicating the headache disorder claim to assist the Veteran in obtaining the neurology records described in her August 2011 letter. In light of the fact that the record demonstrates a potential concussion incurred during travel to ACDUTRA service with reported MRI brain abnormalities, the Board finds that medical opinion should also be obtained as to whether the Veteran's August 2004 head injury resulted in TBI residuals. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (recognizing that TBI residuals may include cognitive, emotional and somatic dysfunction). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159 concerning a claim of service connection for TBI residuals. 2. Assist the Veteran in obtaining MRI and neurology consultation notes which she described in her August 2011 statement as well as records of Kaiser Permanente which she identified in September 2012. 3. Upon receipt of any additional evidence and/or information, schedule the Veteran for appropriate examination to determine whether she has any TBI residuals stemming from her ACDUTRA head injury in August 2004. The claims folder contents must be made available to the examiner(s) for review. The examiner(s) must conduct an examination complying the TBI examination protocols. Following any necessary testing and evaluations, the examiner(s) is/are requested to provide opinion on the following questions: a) whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran manifests any TBI residuals stemming from her ACDUTRA head injury in August 2004; if so, the examiner is requested to specify all aspects of cognitive, emotional and somatic dysfunction; b) if the Veteran does not manifest TBI residuals, or if a TBI residual does not involve headaches, provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran manifests a chronic headache disorder which was caused, or aggravated beyond the normal progress of the disorder, by the August 2004 ACDUTRA head injury; in so doing, the examiner is requested to address the issue as to whether there is any medical reason to accept or reject the Veteran's allegation of chronic/recurrent migraine headaches since the August 2004 ACDUTRA head injury in light of the entire evidentiary record as well as some evidence suggesting sinus-related headaches; and c) if the Veteran does not manifest TBI residuals, or if a TBI residual does not involve symptoms from a currently manifested acquired psychiatric disorder, provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any currently manifested acquired psychiatric disorder was caused, or aggravated beyond the normal progress of the disorder, by the August 2004 ACDUTRA head injury and/or service-connected left foot disability; in so doing, the examiner is requested to consider the opinion of the February 2006 examiner and address whether the service-connected left foot disability, when considered alone from nonservice-connected disabilities, is a factor in the currently diagnosed acquired psychiatric disorder(s). The examiner(s) is/are requested to provide a rationale for any opinion provided. If any opinion cannot be provided without resort to speculation, the examiner is requested to explain why an opinion would be deemed speculative in nature. 4. Thereafter, readjudicate the claims on appeal (as listed on the title page). If any claim on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs