Citation Nr: 1315368 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 06-20 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral foot disorder, other than pes planus, to include degenerative arthritis (degenerative joint disease), hallux valgus, and onychomycosis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to August 1993. This matter comes before the Board of Veterans' Appeals from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was remanded by the Board in November 2008, April 2011, and October 2012 for additional development. In the Board's October 2012 remand, the Board referred the matter of a sinus disorder to the Agency of Original Jurisdiction (AOJ) for appropriate action. As it appears that this matter has still not been addressed, the Board again refers this matter to the AOJ. FINDING OF FACT The preponderance of the evidence is against a finding that a bilateral foot disorder, other than pes planus, had onset in service, manifested to a compensable degree within one year following service discharge, or is proximately due to or aggravated by the service-connected pes planus. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disorder, to include on a secondary basis, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). By letters dated July 2004, June 2006, May 2009, and December 2012, the Veteran was notified of the information and evidence necessary to substantiate her claim. VA told the Veteran what information she needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. VA satisfied the notice requirements under Dingess in the June 2006, May 2009, and December 2012 letters, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date. Adequate notice has been provided to the Veteran prior to the transfer and certification of her case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met. Nonetheless, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the record reflects that all available service treatment records (STRs) and all pertinent available post-service medical evidence identified by the Veteran has been obtained. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded a VA examination in June 2011 and January 2013. These examinations addressed the nature and etiology of her claimed bilateral foot disorder with the examiners providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria, Factual Background, and 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, 1131; 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that she currently suffers and has suffered bilateral foot problems since service. On June 1982 service entrance examination, the Veteran's feet were evaluated as normal. In May 1983, the Veteran complained that the nail of her left hallux was coming off after dropping an object on it. X-rays of this toe showed no fracture. One month later, the Veteran complained of an ingrown toenail in her right big toe. The physician noted tenderness and redness. In March 1984, the Veteran had a toenail removed on her left foot. The examiner noted no evidence of infection. That same month, the Veteran also had an ingrown right hallux toenail. On August 1985 examination, the Veteran's feet were evaluated as normal. A May 1986 podiatry record noted surgery for the Veteran' right great toe. She was placed on a limited profile for fourteen days. In June 1987, the Veteran reported burning and pain in the balls of her feet after running, which was relieved with rest. She was diagnosed with pes planus. In November 1988, the Veteran complained of recurrent painful cut nails. In October 1989, the Veteran again complained of pain and burning in her feet. The assessment was painful feet due to running and she was referred to a podiatrist. A subsequent podiatric clinic record noted that the Veteran was a runner of long distances and had been getting pain in both of her feet off and on. The record also noted a history of painful burning feet and pes planus. Orthotics were recommended. The Veteran was seen in December 1990 for pain in both heels. A January 1991 medical profile noted painful bilateral heels. On September 1991 examination, the Veteran's feet were evaluated as normal. On associated report of medical history, the Veteran indicated no foot trouble. On August 1993 separation report of medical history, the Veteran did report foot trouble; however, on separation examination, the Veteran's feet were evaluated as normal. Post-service, on February 2000 report of medical history, the Veteran reported no foot trouble. On January 2001 examination, the Veteran's feet were evaluated as normal. Insurance records reveal treatment with a podiatrist in May 2005. The Veteran was afforded a VA examination in June 2011. The Veteran reported pain in the heel, arch, and ball of both feet. After examination, the examiner diagnosed bilateral hallux valgus, with self reported past hallux valgus surgery, with residual scarring and residual hallux valgus and bilateral great toe tenderness, bilateral pes planus, degenerative joint disease (DJD) of both feet, onychomycosis in all the toenails, and tenderness of the left little toe in the area of the nail, possibly from irritation from a thick toenail. The examiner opined that the Veteran's DJD was less likely than not caused by her service. The examiner explained that DJD was not noted in service or within 12 months of leaving service. Further, the examiner pointed out that on examination in 2001, the Veteran did not report any foot trouble and examination revealed normal feet. The Board notes that in October 2012, the Board granted service connection for pes planus. At this time, the Board remanded the Veteran's bilateral foot claim (for a foot disorder other than pes planus) to obtain an examination and/or opinion to determine if there was any relation (causation or aggravation) between the Veteran's current foot problems and the now service-connected pes planus. The Veteran was afforded another VA examination in January 2013. Diagnostic imaging revealed degenerative arthritis of both feet. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by service. The examiner stated that the Veteran has mild degenerative arthritis and mild flatfeet. She explained that degenerative arthritis of the feet is a common condition caused by the natural aging process and not by flat feet. Further, she stated that degenerative arthritis and hallux valgus are not aggravated by flat feet. She explained that hallux valgus is a mostly genetic problem. As for onychomycosis (diagnosed in June 2011 VA examination), the examiner explained that this is a fungal infection of the toenails caused by fungus and not caused by flatfeet or the treatment for ingrown toenails that the Veteran received while on active duty. It is not in dispute that the Veteran suffers from a bilateral foot disorder, other than pes planus, to include degenerative arthritis, hallux valgus, and onychomycosis. After a review of the evidence as delineated above, the Board finds that the evidence is against a finding of service connection for a bilateral foot disorder. The preponderance of the evidence is against a finding that service connection for arthritis of the feet is warranted on a presumptive basis. The records do not include a diagnosis of arthritis confirmed by X-ray within the first post-service year. Indeed, the first documented report of degenerative joint disease is not until many years after service (on July 2011 VA examination). Under certain circumstances, the Veteran as a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, arthritis is not a simple medical condition, because it cannot be perceived through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Personal knowledge is that which is perceived through the use of the senses.). Rather, its presence is confirmed by X-rays, as was done in this case in 2011, many years after service. Arthritis is identified by diagnostic testing, and for VA purposes, must be shown on X-ray examination. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For these reasons, the Board determines that arthritis of the feet is not a simple medical condition that the Veteran as a lay person is competent to identify. Consequently, service connection for arthritis on a presumptive basis under 38 U.S.C.A. § 1112 is not warranted. In addition, the Board has considered whether the evidence demonstrates a continuity of symptomatology since service, but finds that it does not. See 38 C.F.R. § 3.303(b). The Board acknowledges that the Veteran received treatment in service for ingrown toenails and for burning and pain in her feet. However, the Board notes that on all service examinations, including on service separation examination, the Veteran's feet were evaluated as normal. This tends to imply that the Veteran's foot conditions were transient and not chronic conditions. Significantly, on a post-service report of medical history, the Veteran specifically denied any foot trouble. A subsequent examination again revealed normal feet. The Board acknowledges the Veteran's statements that her feet problems have continued since service. In this regard, the Board notes that lay persons are competent to report symptomatology as it is perceived through the senses. See Jandreau, supra. However, the evidence of record contains some inconsistencies that diminish the reliability of the lay statements of the Veteran. Notably, even though the Veteran reported foot trouble at separation (possibly referred to her transient foot problems during service), her feet were clinically evaluated as normal at this time. Further, the Veteran specifically denied foot problems on February 2000 report of medical history. Considering the above, the Board finds the Veteran's current assertions of continuity of symptomatology since service not to be reliable and places little probative weight on them. Consequently, service connection for a bilateral foot disorder on the basis that it became manifest in service and has persisted since is not warranted. What remains for consideration is whether or not in the absence of a showing of onset in service and continuity since, the bilateral foot disorder may somehow otherwise be related to the Veteran's service. However, the most probative and persuasive evidence of record shows that her current diagnosed foot conditions are unrelated to the symptoms in service. Indeed, the only medical opinions of record were the ones provided in 2011 and 2013 by VA examiners. The examiners cited to the factual record, including that service separation examination noted normal feet and that the Veteran specifically reported no foot trouble in February 2000 and her feet were again evaluated as normal in January 2001. The January 2013 examiner also specifically considered whether the Veteran's pes planus could have caused or aggravated her other foot conditions, but found that the conditions were either genetic or due to the aging process (and not aggravated by pes planus). Because the examiners expressed familiarity with the record, and cited to supporting factual data, their opinions are probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, these opinions are the only medical opinions in the record. Given the depth of the examination reports and medical opinions, and the fact that the opinions were based on a review of the applicable record, including the lay statements of record, the Board finds such opinions are highly probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). In this case, the Board finds that the etiology of the currently diagnosed bilateral foot disorder requires expertise which is beyond the Veteran's capabilities and therefore the Veteran's opinion as to the etiology of her foot problems is not competent evidence and cannot serve to support a grant of service connection. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In sum, while service treatment records show the Veteran suffered bilateral foot problems in service, a preponderance of the evidence is against associating the currently diagnosed bilateral foot disorder with the in-service complaints or with a service connected disability. In making this determination the Board has considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the claim, and the rule does not apply. Gilbert, 1 Vet. App. at 55. Therefore, the appeal in this matter must be denied. ORDER Service connection for a bilateral foot disorder, other than pes planus, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs