Citation Nr: 1315345 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-26 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bone spurs of the right foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from August 1985 to August 1989, from January 18, 1992 to January 25, 1992, and from August 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified in November 2008 before the undersigned Veterans Law Judge at a Travel Board hearing at the VARO in Nashville, Tennessee; a transcript is of record. This claim was previously before the Board in March 2009 and October 2011, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT The competent and probative evidence establishes that bone spurs of the right foot were manifest during active service. CONCLUSION OF LAW The criteria for service connection for bone spurs of the right foot have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for bone spurs of the right foot. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). April 2002 VA treatment records indicate that the Veteran had a dorsal exostectomy of the first metatarsal cuneiform joint of the right foot. The record does not show that the Veteran previously had a bone spur of the right foot. The service treatment records from the final period of active service show that in June 2004 the Veteran wrote that she was seen by a podiatrist for bone spur surgery. It was noted at a September 2004 pre-deployment screening that the Veteran had bone spur surgery on the top of the right foot. June 2005 treatment records indicate that the Veteran had bone spurs which had been treated by VA. The Veteran wrote on a November 2005 medical assessment report that her feet hurt everyday and that she had had bone spur surgery and had plantar fasciitis. The Veteran testified at the November 2008 hearing that she had a heel spur and a spur in the top of her right foot. The bone spur on the top had been treated with surgery but a doctor had told her that it came back. The Veteran testified that she had to walk slow when she was in Iraq because of problems with her feet. The Veteran had a VA examination in September 2009 for her feet at which she said she had a bone spur on the top of the right foot at the metatarsal cuneiform area. This was the same area in which a scar was present, and she said that the symptoms returned two to three months after the surgery. On examination there was prominence and tenderness in the right metatarsal area on direct palpation. X-rays did not show any significant bony spur formation at the metatarsal cuneiform joint. The examiner's impression was mild, asymptomatic spur formation on the inferior aspect of the calcaneus. He felt it was a residual from the surgical procedure and that it was not aggravated or initiated by military service. The Veteran had another VA examination in January 2012 at which she said that she first noticed the bone spur while at Fort Sam Houston. The bump on the right foot bothered her when something fell on it. The examiner felt that the postsurgical bone spur resection on the right foot with mild discomfort on palpation was likely a residual from the surgical procedure. In a January 2013 opinion, a VA podiatrist wrote that the Veteran's bone spurs underwent a permanent increase in severity during the Veteran's 2004 to 2005 period of active duty. This was unlikely to have occurred without the functional demands placed on her feet during this period of active duty. The podiatrist wrote that the bone spur for which the Veteran underwent surgery in April 2002 was a multifactorial condition that was not due to mechanical stress. In reviewing the claim, the Board finds that there is clear and unmistakable evidence that the Veteran's bone spur of the right foot existed prior to her August 2004 to November 2005 period of active service. The VA treatment records show that in 2002 the Veteran underwent surgery for removal of a bone spur from the right foot. The record does not contain an examination report from when the Veteran entered this period of active duty. Therefore, bone spurs of the right foot were not noted upon entry this period of service. Furthermore, the record does not contain clear and unmistakable evidence that that any increased during service was due to a natural progression. The podiatrist who reviewed the record in January 2013 felt that the bone spurs underwent a permanent increase that was unlikely to have occurred without the functional demands of active service. While the September 2009 examiner felt that the bone spurs were not aggravated or initiated by military service and January 2012 examiner did not provide an opinion of the effect of military service, the Board finds that on the whole the record does not contain clear and unmistakable evidence to rebut the presumption of soundness at service entrance in regards to bone spurs of the right foot. Thus, the medical evidence clearly and unmistakably shows that her bone spurs existed prior to service. The medical evidence, however, does not clearly and unmistakably reflect that the condition was not aggravated by such service. Thus, because she was normal at service entrance with respect to this disability, and since the evidence does not clearly and unmistakably show that her bone spurs of the right foot both existed prior to service and were not aggravated by service, (and she currently suffers from bone spurs of the right foot), the criteria for service connection have been met. In summary, bone spurs of the right foot were not noted at entry to the second period of service, were diagnosed during service and were worsened by the Veteran's service, and there is a current diagnosis of bone spurs of the right foot. Consequently, the benefit sought on appeal is granted. See 38 U.S.C.A. § 1111. ORDER Service connection for bone spurs of the right foot is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs