Citation Nr: 1316764 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-26 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD McBrine, M. Counsel INTRODUCTION The Veteran served on active duty from December 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 Regional Office (RO) in Seattle, Washington rating decision, which denied the claim on appeal. The Veteran had a local hearing before an RO hearing officer in June 2009. The Veteran also had a hearing before the undersigned Veterans Law Judge in October 2009. A transcript of each proceeding has been associated with the claims file. The Board points out that the Veteran has recently submitted evidence pertaining to hearing loss and tinnitus; it appears the Veteran may be attempting to file a claim for those disabilities; as such, these issues are referred to the RO, so they may contact the Veteran to determine what, if any, additional claims he wishes to pursue. The Veteran's claim was remanded for further development in January 2010 and August 2011. All requested development having been completed, the matter again is before the Board. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral foot disorder is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A bilateral foot disorder was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in January 2010 and August 2011 for further development, specifically for a VA examination with opinion to adequately address the etiology of the disability on appeal. The Veteran was provided with a VA examination in January 2010 with an addendum opinion in August 2011 and his claim was readjudicated in a June 2012 SSOC. 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). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in March 2006, May 2006, November 2008, and September 2011 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with a VA examination in January 2010, with an addendum opinion obtained in August 2011. This examination with an addendum opinion was thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection in terms of info as to etiology. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims that he has a foot disability that was caused by service. Specifically, he asserts that his condition is likely related to his service connected back disability, or a knee injury which he asserts is service connected. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). 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). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Taking into account all relevant evidence, the Board finds that service connection is not warranted for a bilateral foot disorder. In this regard, the Board finds that the preponderance of the evidence of record indicates that while the Veteran does have a bilateral foot disorder, it is not related to service. Initially, the Board notes that the Veteran's service treatment records show no complaint of, or treatment for, any foot disorder. In a March 2004 VA outpatient treatment record, the Veteran reported a history of pain in his feet. No diagnosis of any foot disorder was made at that time; however, at some point the Veteran was noted to have a diagnosis of hammertoe. A February 2007 podiatry note indicated that the Veteran had pronation of the foot. An April 2007 note from the VA podiatry clinic indicated that the Veteran was prescribed orthotic inserts to help with foot pain. The transcript of a June 2009 Decision Review Officer hearing indicates that the Veteran reported significant foot pain he felt was related to his service connected back disability, and other disabilities he felt were related to service. The Veteran did not note any specific in service foot injury. A September 2009 treatment record noted that the Veteran did have neurotic symptoms in his right foot which were related to his service connected back disability. The Board notes that a May 2009 decision did grant the Veteran service connection for paresthesia of the right lower extremity at a 10 percent evaluation, therefore this particular right lower extremity issue is not at issue in the current claim. During the Veteran's hearing testimony in October 2009, he indicated that he felt his flat feet were related to his service connected back disability, or possibly to knee disabilities he felt were related to service. The Veteran received a VA examination for his claimed bilateral foot disorder in January 2010. At that time, the Veteran appeared to be claiming that he had pes planus as a result of a knee injury in service. The Veteran reported problems with pain, stiffness, and weakness in his feet. He has orthotic inserts in his feet. On examination, tenderness was noted in the arches of both feet. The right heel had valgus of 3 degrees, correctible by manipulation. A normal heel toe gait was noted when walking, with no limp, and no favoring. X-rays of the Veteran's feet showed pes planus of both feet, with moderately advanced osteoarthritis of the left first metarsophalangeal joint. The Veteran was diagnosed with bilateral flat feet. The examiner indicated that the Veteran's feet problems were specifically not related to service. He noted that the Veteran had no injury to his feet in the military. Furthermore, the Veteran's work history on freight docks, with lifting, loading, and jumping down from the docks, as well as his body weight, would impact his feet. A VA addendum opinion regarding whether the Veteran's bilateral foot disorder was related to his service connected back disability was obtained in August 2011. At that time, the examiner indicated that the Veteran's currently diagnosed flat feet condition was not caused by or related to the Veteran's service connected back and sciatic nerve condition. In support of this opinion, the examiner indicated that it was more likely that the Veteran's flat feet condition was caused by his long term obesity, and the type of work history he has is more consistent with standing, jumping, and heavy lifting, all of which can lead to fallen arches and a flat foot condition. Further, the physician noted that the Veteran did not have flat feet upon separation from service and there were no complaints related to flat feet noted in the Veteran's service treatment records. The physician also did note that the Veteran's current neurotic symptoms in his right foot were at least as likely as not caused by his L4-L5 radiculopathy, and noted that the Veteran was currently service connected at a 10 percent evaluation for this. Thus, aside from the right lower extremity neuralgia for which the Veteran is service connected, all of the medical evidence of record indicates that the Veteran's only remaining currently diagnosed foot disability, pes planus, or, flat feet, is not related to service. There is simply no evidence of record that the Veteran incurred flat feet in service, or another injury directly to his feet. The evidence of record does not show any diagnosis of any further foot disability until over 30 years after his separation from service. To the extent that the Veteran is arguing that his foot disability may also be related to a knee injury he believes is related to service, the Board points out that an August 2011 Board decision denied service connection for this issue, therefore, service connection as secondary to any knee disability cannot be granted. The Veteran is certainly competent to testify, as he has, as to the nature of his symptoms and their approximate date of onset. However, the Board notes that he has not asserted that his disability began in service. Rather, he asserts that it began secondary to a service-connected back disability. However, the Board finds that the question of whether the Veteran's flat feet are secondary to a specific service connected disability of the spine is one that requires medical expertise outside the scope of the Veteran's medical knowledge. Therefore, the Board finds that the most probative evidence of record is the VA opinion discussed above. In summary, considering the medical evidence of record, the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a bilateral foot disability, specifically, flat feet. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49 ORDER Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs