Citation Nr: 1314274 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 11-11 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left foot disorder. REPRESENTATION Veteran represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran had active duty service in the military from November 1942 to February 1943. This appeal to the Board of Veterans' Appeals (Board) is from a March 2010 rating decision of a special processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in St. Petersburg, Florida, certified the appeal to the Board. In a September 2011 decision, the Board remanded the Veteran's claim for service connection for a left foot disorder, to the agency of original jurisdiction (AOJ) for additional development. In November 2012, the Board again remanded the claim for further development. The case now returns for further appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. 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). FINDINGS OF FACT 1. There is clear and unmistakable evidence that a left foot/instep injury pre-existed the Veteran's entrance to active duty. 2. There is clear and unmistakable evidence that residuals of a left foot/instep injury did not permanently increase in severity in service and degenerative joint disease of the left foot is a natural progression of the injury and degeneration due to old age. 3. The Veteran's pre-existing residuals of a left foot/instep injury were not aggravated by his military service. CONCLUSIONS OF LAW 1. The presumption of soundness is rebutted and a left foot/instep injury pre-existed the Veteran's entry into active duty military service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012). 2. Residuals of a left foot/instep injury, to include degenerative joint disease of the left foot, was not aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent to the Veteran in September 2009. The letter indicated the type of evidence and information needed to substantiate the Veteran's service connection claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also notified him that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess/Hartman, supra. Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At least some of the Veteran's service treatment records (STRs), including his induction physical examination report, are located in the claims folder. However, in a September 2009 response for records the RO was informed that the Veteran's records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), a military records repository in St. Louis, Missouri. The Veteran, in his March 2010 notice of disagreement, acknowledges that the STRs are not complete. Alternative source records consisting of hospitalization records were obtained by NPRC. Here, although a substantial amount of STRs are in the claims folder, it is not certain at this point that they are complete. In circumstances where records were destroyed or lost, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the Veteran in developing the claim, and to explain the reasons and bases for its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing or damaged STRs, alone, while indeed unfortunate, do not obviate the need for him to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, missing or damaged STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf., Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The Veteran's VA medical treatment records, and identified private medical records were obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to this claim, is available and not part of the claims file. Also, subsequent to direction by the Board in its September 2011 remand, a VA medical examination was performed to determine whether service aggravated the Veteran's claimed left foot disorder. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In October 2011, the Veteran was provided the requested VA medical examination. However, as the opinion inaccurately stated that the Veteran did not seek medical attention for his left foot post-service, the Board remanded the claim again in November 2012 for an addendum opinion, which was obtained in November 2012. The November 2012 medical opinion obtained is responsive to the determinative issues of aggravation, and discusses the Veteran's post-service left foot complaints, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board finds that such VA opinion is adequate to decide the issue as it is predicated on a review of the record, to include the Veteran's service treatment records and the October 2011 interview with the Veteran and accompanying physical examination/diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As indicated previously, the Board remanded the case for additional development in September 2011 in order to request that the Veteran identify any outstanding records and afford him a VA examination. As such, in a September 2011 letter, the AOJ requested that the Veteran identify any outstanding records. Additionally, the AOJ obtained updated VA treatment records and afforded the Veteran a VA examination in October 2011. Additionally, the case was again remanded in November 2012 in order to obtain an addendum opinion, which was secured later in November 2012. Therefore, the Board finds that the AOJ has substantially complied with the September 2011 and November 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). A Veteran is 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn , 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. If a Veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009)("The presumption of soundness . . . does not relieve the Veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran has a current diagnosis of left foot degenerative joint disease, which was noted at the time of the October 2011 VA examination as documented on an X-ray. Likewise, private post-service clinical records from November 2008 and December 2009 show the Veteran's complaints of left foot pain attributed to left mid-foot trauma, and left ankle pain related to arthritis. The Board also notes that buddy statements submitted in September 2009 reflect the lay witnesses' competent observations of the Veteran's difficulties with his left foot, to include his instep. As such, the remaining inquiry is whether such left foot disorder is related to the Veteran's military service. In this regard, the Board notes that the Veteran's service treatment records reflect that, upon physical examination at his November 1942 entrance examination his feet were normal. Therefore, the presumption of soundness attaches. However, the Board finds that there is clear and unmistakable evidence that a left foot/instep injury existed prior to service and residuals of such were not aggravated by service. Therefore, the presumption of soundness is rebutted and a left foot/instep injury pre-existed the Veteran's entry into active duty military service. In regard to the Board's finding that a left foot/instep injury pre-existed service, the Board notes that the Veteran himself has indicated that, when he was age 8 or 9 a horse-drawn carriage ran over his left foot instep, fracturing several bones. See September 2009 statement. Additionally, a January 1943 personal history form indicated that the Veteran had fractured his left ankle at age 10 in an automobile accident, thus corroborating his concession of a pre-service left foot/instep injury. Moreover, the VA examiner opined in October 2011 that the Veteran's left foot disorder clearly and unmistakably pre-existed service, as the Veteran reported that a horse drawn wagon ran over and fractured his foot when he was 8 years old. Therefore, the Board that a left foot/instep injury clearly and unmistakably existed prior to his military service. However, with respect to rebutting the presumption of soundness, as noted above, the Board's inquiry does not end with a determination that a left foot/instep injury clearly and unmistakably pre-existed service. The Board must also determine whether any residuals of such injury clearly and unmistakably were not aggravated during service. In this regard, the Veteran's service treatment records are negative for any complaints or treatment referable to his left foot. Furthermore, in October 2011, the VA examiner determined that the Veteran's left foot disorder was clearly and unmistakably not aggravated beyond its natural progression during service. In this regard, she noted that the service treatment records were silent to an injury to a the left foot during active duty and there was no record of acute disease of the left foot or a record of a deformity of the left foot. She further indicated that the VA treatment records are negative for complaints regarding the Veteran's left foot; however, she inaccurately reported that the private treatment records likewise showed no complaints referable to the left foot. The examiner also reported that the current physical examination of the left foot was normal and the imaging showed degenerative changes consistent with his age. Therefore, she concluded that there was no evidence of permanent aggravation of the Veteran's left foot disorder during active duty. In light of the October 2011 VA examiner's misstatement of fact regarding the private treatment records as records from November 2008 and December 2009 show the Veteran's complaints of left foot pain attributed to left mid-foot trauma, and left ankle pain related to arthritis, she provided an addendum opinion in November 2012. In this regard, in November 2012, the VA examiner determined that the Veteran's left foot disorder, diagnosed as degenerative joint disease, was clearly and unmistakably not aggravated beyond its natural progression during service. In rendering this opinion, the examiner noted that, while the Veteran complained of right knee pain in service, he did not report left foot pain. The examiner noted that the Veteran's January 1943 examination did not show a left foot deformity and that she would have expected a report of left foot abnormality such as edema, erythema, or tenderness if the Veteran's foot condition were aggravated during service. She then noted the Veteran's complaint of a left foot cramp in November 2008 secondary to a history of foot trauma, and arthritis in December 2009, and reasoned that these complaints were unlikely an aggravation of the pre-service foot injury and were more likely a natural progression of the very old injury and degeneration due to old age. The examiner further stated that October 2011 X-rays of both feet show the same moderate degenerative (arthritic) changes, and that she would expect a more advanced degenerative change of the left foot compared to the right if aggravated during active duty. Regarding the Veteran's edema, reported in December 2008, the examiner noted that it was no longer reported on subsequent clinical notes and that the Veteran was advised to follow a low salt diet. Therefore, the Board finds that there is clear and unmistakable evidence that a left foot/instep injury pre-existed the Veteran's entrance to active duty and that residuals of such injury did not permanently increase in severity in service and degenerative joint disease of the left foot is a natural progression of the injury and degeneration due to old age. The Board accords great probative weight to the VA examiner's opinions that the Veteran's left foot/instep injury clearly and unmistakably pre-existed service and residuals of such were not aggravated during service. In this regard, she reviewed the claims file, to include the Veteran's contentions, his service treatment records, and post-service treatment records, and the October 2011 physical examination with diagnostic testing. As such, her opinions were based on an accurate and complete factual premise. Moreover, the VA examiner's opinions contained clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board accords great probative weight to the VA examiner's opinions. There is no contrary medical opinion of record. The Board notes the Veteran's contention that his left foot disorder was aggravated by military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's left foot disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the Board finds that the impact, if any, of the Veteran's activities during his military service on his pre-existing left foot disorder is a complex medical question as such involves the knowledge of the disease process of arthritis. There is no indication that the Veteran possesses such requisite knowledge and, therefore, he is not competent to render an opinion on such a complex medical question. Therefore, while the Veteran is competent to describe his in-service experiences and current manifestations of his left foot disorder, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such complex medical questions. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his military service and his current left foot disorder. In contrast, the VA examiner took into consideration all of the relevant facts in providing an opinion, to include the nature of the Veteran's pre-existing left foot injury, post-service treatment, and the current nature of his left foot disorder. Consequently, the Board accords greater probative weight to the VA examiner's opinions. Therefore, the Board finds that there is clear and unmistakable evidence that a left foot/instep injury existed prior to service and residuals of such injury were not aggravated by service. As such, the presumption of soundness has been rebutted. Consequently, the remaining inquiry is whether the Veteran's pre-existing residuals of his left foot/instep injury were aggravated by his military service. As discussed previously, the competent and probative VA examiner's opinion indicates that the Veteran's residuals of his pre-service left foot/instep injury were not aggravated during service and his current degenerative joint disease of the left foot was a natural progression of the very old injury and degeneration due to old age. Therefore, the Board finds that, based on the competent and probative evidence of record, the Veteran's pre-existing residuals of a left foot/instep injury were not aggravated by his military service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left foot disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left foot disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs