Citation Nr: 1317028 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-14 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2012, the Board remanded the claim on appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. The development has been completed and the case is before the Board for final review. 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). FINDING OF FACT The Veteran does not have a current left foot disability. CONCLUSION OF LAW The criteria for establishing service connection for a left foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an August 2009 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in April 2013. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment and personnel records, post-service VA treatment records, VA examination reports, and lay statements. In the November 2012 remand, the Board instructed the RO, in part, to obtain the Veteran's "service personnel file and DD Form 214. Then, the RO should attempt to obtain deck logs, sick bay records, or any other records from the USS McGinty for the time period during which the Veteran served on the ship." The Board notes that the AMC obtained the Veteran's service personnel records; additional VA treatment records, which are associated with his electronic Virtual VA claims file; and afforded the Veteran a VA feet examination. However, it appears that the AMC did not attempt to obtain a DD Form 214, deck logs, sick bay records, or other records from the USS McGinty. Nevertheless, the Board concludes that a remand to obtain any such records would serve no useful purpose and would in no way benefit the Veteran because his record of service and status as a veteran is documented in other service records associated with the claims file and because competent medical evidence of record reflects that he does not have a current left foot disability, an essential element required to grant his claim for service connection. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). Accordingly, the Board also concludes that there has been substantial compliance with its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In various statements throughout the record, the Veteran asserted that he has a current left foot disability as a result of a projectile man dropping a 55-pound projectile, which crushed the Veteran's left foot while firing on-shore targets of North Korea during combat operations while he was aboard the USS McGinty and serving as Mount Captain. He states that he was treated by medical corpsman who bandaged his left foot, but no follow-up treatment was initiated due to the fact that they were at sea and "in the middle of combat and the ship was very busy." See January 2009 Statement from Veteran. He also notes that he was unable to wear a shoe on his left foot for several months after the injury and that he had problems with his left foot since this injury and it was now causing arthritis problems. His service treatment records are silent for complaints, findings, or reference to a left foot crush injury. In December 1951, the Veteran sustained a simple fracture of the fifth toe on his right foot while playing basketball; service connection is in effect for a comminuted fracture of the distal third of the proximal phalanx of the fifth right toe. In September 1954 he complained of blisters on both feet, which were drained. In October 1954 he reported sore feet. On separation examination in October 1955, an abnormality was identified during clinical evaluation of the feet. The examiner identified the abnormality as the right fifth toe fracture. No abnormality of the left foot was identified. A Naval separation document reflects that the Veteran's military occupational specialty was that of "gunner's mate (mounts), second class" and that he served on the USS McGinty, a destroyer ship, as well as the USS Princeton. His service personnel records also confirm service aboard the USS McGinty from 1952 to 1954. In August 1953 he was awarded the Korean Service Medal and Engagement Stars for participation in operations from November to December 1951, March to April 1952, and in May 1953. Engagement stars have been authorized for the Korean Service Medal for participation in combat operations. See http://www.history.navy.mil/medals/kormedal/korea-e.htm (last visited May 17, 2013). During a new patient visit to establish VA care in February 2009, the Veteran stated that he needed a consultation for hearing aids, but had no other complaints. During a review of systems, he reported unchanged general arthritis pain. He did not identify a left foot problem and physical examination did not reveal a left foot disorder. A December 2010 VA primary care note reflects that the Veteran presented for an annual visit and that his last primary care visit was in February 2009. He reported unchanged general arthritis pain, but did not identify any left foot problem. During December 2012 VA primary care treatment, he reported that a shell fell on his left foot during the Korean War and he had problems with it all his life. He stated that in recent years his left foot pain had increased and he was told that he had arthritis. A December 2012 left foot x-ray revealed posterior plantar spurring of the calcaneus. The Veteran was afforded a VA feet examination in January 2013 to evaluate the nature and etiology of his claimed left foot disability. The Veteran described the in-service injury involving a 55-pound projectile dropping on his left foot. He specified that the big toe of his left foot was hurt and he was put on light duty for four months. He stated that his left foot hurts in the MP [metatarsophalangeal] joint of the great toe at all times when walking and that it swells up a couple times a year. The report of a left foot x-ray performed in connection with the examination identified mild posterior plantar spurring on the calcaneus; no fracture was seen. The impression was mild posterior plantar spurring of the calcaneus. Following a review of the claims file and physical examination, the examiner concluded that there was no residual of a fracture of any of the toes of the left foot. The examiner opined that the Veteran did not sustain a left foot or toe disability while serving aboard the USS McGinty between 1952 and 1954. The examiner reasoned that there was no evidence of a prior fracture of the left foot in service treatment records or any residuals on his current physical examination or on the radiograph of the left foot that was performed. After reviewing the medical and lay evidence of record, the Board finds that service connection a left foot disorder is not warranted. Initially, the Board acknowledges that the Veteran is competent to describe symptoms of his claimed left foot disorder such as pain and the event that caused the claimed injury. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Board finds that the Veteran's description of a 55-pound projectile falling on his left foot is credible and consistent with his military duties as a gunner's mate on the USS McGinty during the Korean War. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing a musculoskeletal or orthopedic disorder and determining the etiology of such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions on these points. In this case, the Board finds that service connection for a left foot disorder is not warranted because there is no evidence of a current left foot disability. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Where, as here, the claims file is void of any competent medical evidence establishing that the Veteran currently has a left foot disability, the condition for which service connection is sought is not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran reported pain in his left great toe since the in-service injury on VA examination in January 2013, pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In addition, while he reported being told that he has arthritis, neither the December 2012 nor the January 2013 x-ray revealed arthritis of the left foot. Similarly, while x-rays in December 2012 and January 2013 revealed a posterior plantar calcaneal spur [a spur at the back of the heel], the Veteran has not claimed injury or disability involving this anatomical region of the foot. Rather, he has consistently described a crush injury of his left foot, including the big toe. In this case, the current medical evidence, including a VA examination specifically for the claimed left foot disorder, does not reflect current disability of the left foot or great toe. Accordingly, service connection for that claimed condition is not warranted. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left foot disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs