Citation Nr: 1316637 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-02 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left great toe disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2008, a videoconference board hearing was held before a Veteran's Law Judge. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in August 2008, August 2010, and December 2011. In September 2012, the Veteran was afforded an opportunity for a second formal hearing as the Judge who conducted the July 2008 hearing was no longer with the Board. After receiving his election for a second hearing, the case was again remanded, in October 2012, so that the hearing could be scheduled. In March 2013, a videoconference board hearing was held before the undersigned. A transcript of the hearing is available for review. FINDINGS OF FACT 1. The Veteran testified that he sustained an injury of his left great toe during service, but chronic symptoms of a left great toe disability were not demonstrated during service. 2. In August 1975, a bone lesion of the left hallux with arthritis was demonstrated; the Veteran underwent an excision of hyperostosis of the medial and aspect of the head of the proximal phalanx in September 1975. 3. A left great toe disability, including arthritis, was not caused by any in-service event, including the injury history as related by the Veteran. CONCLUSION OF LAW A left great toe disability was neither incurred in nor aggravated by service nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter on several occasions. In August 2008, the Board instructed the RO/Appeals Management Center (AMC) to obtain outstanding records, to include service personnel records, Social Security Administration (SSA) records, and medical treatment records; to provide the Veteran with an examination for his claimed disability; and to readjudicate the claim. Additional records were obtained and associated with the claims folder as directed by the Board, the Veteran was afforded a VA examination in December 2009, and the claim was readjudicated in a March 2010 supplemental statement of the case (SSOC). Then in August 2010, the Board determined that the December 2009 VA examination report was insufficient and remanded the matter to provide the Veteran with another examination and to readjudicate the claim. Subsequently, the Veteran was afforded another examination in September 2010 and his claim was readjudicated in a July 2011 SSOC. In December 2011, the Board again determined that the VA examination report of record was inadequate and remanded the matter to provide the Veteran with another examination and to readjudicate the claim. The Veteran was afforded another examination in January 2012 and his claim was readjudicated in a July 2012 SSOC. Most recently in October 2012, the Board remanded this matter once again to provide the Veteran with a videoconference hearing, which was held before the undersigned in March 2013. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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) (West 2002); 38 C.F.R. § 3.159(b) (2012). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. January 2005 and October 2008 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The October 2008 letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, all of the Veteran's service treatment records (STRs) that are available have been obtained. In this regard, it is noted that several attempts to obtain the Veteran's STRs have not produced additional treatment records, although in October 2008 service records were obtained from the National Personnel Records Center. Moreover, while the Veteran testified that the fact that his "shot" record had not been obtained, the Board notes that, among the Veteran's STRs is an original immunization record. While no vaccinations are reported, the record does note the Veteran's name, rank, and identification number, among other information pertinent to the Veteran. In addition, as will be described, the Board accepts the Veteran's lay testimony regarding his left great toe injury during service. Pertinent post-service treatment records, including records utilized in a disability determination by the Social Security Administration (SSA), have been secured. The Veteran was afforded VA medical examinations, most recently in January 2012. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran testified that the examiner who rendered the medical opinion questioned his need to claim compensation benefits for his left great toe, but neither he nor the representative has challenged the adequacy of the examination itself. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Additionally, the Veteran presented testimony on two occasions; and specifically before the undersigned in March 2013. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the March 2013 hearing before the Board. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (finding that lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (noting that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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). Left Great Toe Disorder The Veteran contends that his current arthritis of his left great toe resulted from service. He testified at the Board hearings on appeal that during basic training his left boot rubbed against his left great toe causing irritation that continued throughout his period of active duty. He stated that he sought treatment for his left great toe disability during service and that he was treated during service at clinics. Review of the Veteran's STRs shows no complaint or manifestation of a left great toe disability. Nevertheless, the Board finds that the Veteran's testimony that he had irritation of the toe from his left boot is credible. While the Board does not doubt that the Veteran sustained the injury as stated, it does not necessarily follow that this resulted in chronic disability or arthritis that is first shown in the record in 1975. Further review of the evidence shows that at the time of the examination for separation from active duty, the Veteran did not have a complaint or manifestation of a left great toe disorder. Clinical evaluation of the feet at that time was normal. A record from the Veteran's private podiatrist, dated in August 1975, shows that the Veteran was seen for complaints of exostosis of the distal phalanx of the left hallux (the great toe), with stiffness and limitation of joint motion. In September 1975, an excision of hyperostosis of the medial and dorsal aspects of the head of the proximal phalanx of the left hallux was performed. The diagnosis at that time was bone lesion of the left hallux with arthritis interphangeal hyperostosis. Additional private treatment records, dated from 1979 until 2006, do not show treatment for the Veteran's left great toe arthritis. On VA examination in December 2007, the Veteran complained of pain and stiffness of the left great toe, but not symptoms of deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, effusion, inflammation, or episodes of dislocation, subluxation, or locking. Examination showed that weight bearing and gait were normal. There was a well-healed surgical scar at the left great toe, with no tenderness on range of motion of the toe. X-ray studies performed in 2006 showed degenerative joint disease of the left great toe. The diagnosis was post-traumatic arthritis of the left great toe. After noting that there was no documentation of a left toe problem on the Veteran's examination for separation from service, the examiner opined that it was less than a 50 percent probability that the Veteran's current left toe disorder was caused by service. On VA examination in September 2010 of the Veteran's foot, the Veteran reported that he had developed left great toe pain while running in army boots. He described that since onset the course was intermittent, with remissions. The Veteran reported having had surgery on the toe in 1978. He described symptoms of pain while standing, walking or at rest. Examination showed evidence of painful motion and tenderness, but no evidence of swelling, instability, or abnormal weight bearing. There were no hammertoes, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. Degenerative joint disease of the metatarsalphalangeal joints of both feet was demonstrated on September 2010 X-ray studies, greater on the right than on the left. The examiner stated that the condition was considered to be congenital or developmental in nature, and that there was no indication that the condition was worsened by service. The rationale was that the X-ray findings of bilateral metatarsalphalangeal degenerative joint disease showed that it was related to age or genetic predisposition. On VA examination in January 2012, the diagnoses were hallux valgus, hallux rigidus, unguis incarnates of the left medial great toe, and chronic paronychia of the left medial great toe. The Veteran provided a military history relating that upon entering service, he was issued combat boots that did not properly fit and caused foot pain during daily exercise drills, especially in the left great toe. He claimed that shortly thereafter, he developed an abnormal growth on the left great toe located at the medial/proximal aspect of the distal phalange of that toe. He stated that he was placed on profile for this foot pain. Three years after discharge from service, he visited a private podiatrist who cared for his complaints of foot pain. After review of the Veteran's STRs, the examiner noted a lack of evidence of a foot disorder during service, including at examination for separation from service. Examination disclosed mild to moderate hallux valgus of both feet and mild to moderate hallux rigidus of the left foot only. There was no evidence of pes cavus, malunion or nonunion of the tarsal or metatarsal bones, of other foot injuries. The examiner rendered an opinion that the Veteran's pain appeared to stem from chronic ingrown toenails of the first toe, bilaterally. X-ray studies showed no changes from previous findings of bilateral first metatarsalphalangeal joint degenerative changes, more marked on the right, with bilateral calcaneal spurring. It was emphasized by the examiner that there was no involvement of the distal aspect of the distal first phalange of either toe. This was important because this was where the Veteran claimed he had had chronic pain. The physical examination showed significant chronic ingrown toenail soft tissue changes of both feet involving the medial aspect of the distal great toes, and exquisite tenderness was elicited on palpation, which the Veteran described as the pain that he claimed as chronic. The current pain symptoms of the left toe were similar to previous pain that he had had on the right when he had had an ingrown nail excised several years earlier. The examiner rendered an opinion that it was less likely than not that the Veteran's left toe disorder began or was related to service. The rationale included that there were no complaints of left toe pain in the STRs despite evidence of complaints involving the Veteran's shoulder and knee, and that the examination results showed that the etiology of the Veteran's pain appeared to stem from chronic ingrown toenails of the first toe bilaterally. While degenerative changes were seen on X-ray studies of the toes, there was no evidence of arthritis of the distal aspect, which was where the Veteran indicated that he had had chronic pain. The significant chronic ingrown toenail soft tissue changes of both feet were considered to be the etiology of the pain for which the Veteran was claiming compensation. The Board finds the January 2012 VA opinion probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran and his representative have been accorded ample opportunity to present competent medical evidence in support of his claim; they have has failed to do so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). As noted, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson, 12 Vet. App. at 247. In this case, the Board accepts the Veteran's claims of in-service left great toe pain, but there is no medical evidence of a nexus between that foot pain and the current disability. While the record shows that he was noted to have arthritis of the left great toe in 1975, this was three years after he separated from service. Moreover, his current complaints of pain are not shown to be the result of arthritis, but related to his ingrown toenail as noted in the most recent VA examination report. In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board and the VA examiner have taken into account the Veteran's reported history and the Board acknowledges that the Veteran is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current toe disorder. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the VA examiner's opinion as it was rendered after an extensive evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for a left great toe disorder is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs