Citation Nr: 1318693 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-38 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of corn excision of the left foot. 2. Entitlement to service connection for bilateral foot disability, to include bunions, hammer toes, plantar fasciitis, and flat feet. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to August 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the benefits sought on appeal. In March 2010 and September 2012, the Board remanded the matter for additional development and adjudication; having been completed, the claims have been returned to the Board and are now ready for appellate disposition. The Veteran has raised a claim for a low back disability. The Board previously referred the issue; however, the claim still has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is, referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran currently has residuals of corn excision of the left foot due to events in active service. 2. The competent and probative medical evidence of record preponderates against a finding that the Veteran's bilateral foot disability, to include bunions, hammer toes, plantar fasciitis, and flat feet, is due to events in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of corn excision of the left foot have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The criteria for service connection for a bilateral foot disability, to include bunions, hammer toes, plantar fasciitis, and flat feet, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in March 2007. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examination, and afforded the Veteran the opportunity to give testimony before the Board, which he declined. The Board notes that the Veteran submitted an additional record from the California Department of Corrections after the March 2013 supplemental statement of the case was issued. However, remand is not necessary as it was either not pertinent (relating to a low back disability) and/or duplicative of evidence already of record, i.e. the new evidence simply confirmed the diagnosis of plantar fasciitis and showed the Veteran wore custom insoles and orthotics, which is not in dispute. 38 C.F.R. § 19.31. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran reports that he has residuals of corn excision of the left foot performed during active military service. He claims corns formed as a result of performing physical exercise and training in service while wearing combat boots. He further contends that as a result of performing physical training and duties in military combat boots, he has developed a bilateral foot deformity, to include bunions, pes planus, hammer toes, and plantar fasciitis. The service treatment records reflect no histories, findings, or treatment suggestive of a bilateral foot deformity, to include bunions, pes planus, hammer toes, or plantar fasciitis. These records do show the Veteran had a corn of the left fifth toe debrided in September 1977. In May 1979, the Veteran had a resistant corn of the left fifth toe of one year duration. The Veteran denied combat boots being painful. Surgical correction was recommended. The corn was trimmed. The Veteran was placed on a physical profile and was not to work in an area where steel toe shoes were mandatory. In July 1979, he had follow-up treatment and removal of three nylon sutures. There was some pain and tenderness, but no swelling. In August 1979, the area was healing within normal limits. The Veteran was playing basketball. No further treatment was necessary. In January 1980, the Veteran underwent an additional corn removal of the left fifth toe. He was placed on a temporary profile for no prolonged standing, walking, or running. The October 1984 separation examination noted the Veteran had surgical corn removal of the left fifth digit with no complications or sequelae. The physical examination was negative for either corns or bilateral foot disability. A November 1984 periodic examination showed the Veteran had no complaints and his evaluation was normal. Post-service, records from the California Department of Corrections show the Veteran was allowed to wear soft shoes for symptoms associated with chronic fasciitis, symptomatic pes planus, and bunions, bilateral. He continued to seek treatment in 2009 for painful feet. He was variously diagnosed with chronic plantar fasciitis, bunions, and pes planus. X-rays dated in May 2009 revealed bilateral hallux valgus, bunions, and degenerative changes of the first metatarsophalangeal toes. Entry dated in January 2010 noted the prior surgery of the left fifth toe. He continued to complain of bilateral foot pain in 2010 and pain associated with plantar fasciitis in 2012. The Veteran was afforded VA examination in March 2012. The examiner noted pes planus, hammer toes (second, third, and fourth toes bilaterally) and hallux valgus. He had no surgical scars of the feet. The examiner noted the Veteran had a left fifth toe corn trimmed in 1978, corn trimmed in 1979, and corn shaved in 1980. The examiner found no other interval history until the Veteran was placed on profile for soft shoes and arch supports for fasciitis in prison after service. There were no corns appreciated on the current examination. He had flat arches when standing and the plantar aspects of the feet were tender. The examiner opined bunion deformity, flat foot deformity, and hammer toes were less likely than not incurred in or caused by service. The examiner reasoned that the only condition treated in service was corns, which were shaved and not currently present. The 1984 periodic examination showed normal feet. The examiner found an extensive gap between current conditions and those documented in service. The examiner further reasoned that the treatment of corns by shaving does not cause bunions, hammertoes, or flat feet. In an October 2012 addendum opinion, the VA examiner opined it was not at least as likely as not that any foot condition diagnosed upon VA examination in March 2012 (pes planus, hammer toes, hallux valgus, or degenerative joint disease) had any relation to service. The examiner reasoned corns were not present, found, visible, measured or otherwise appreciated on the March examination. The examiner concluded the excision of the corn from the fifth left toe in service was not sufficient to cause the foot conditions listed above. The examiner indicated the great toe was the most implicated in gait and the removal of tissue from the little toe, wearing of combat boots, or any other incident in service would not result in a structural change in the rest of the foot. The examiner further indicated these changes occurred on their own over time, greater than 40 years, and were unrelated to events in service. The examiner noted that the separation examination attested to the surgical removal of the corn of the left little toe and documented that there were no complications or sequeli. The examiner concluded it was not his training and experience alone, but that of the above mentioned clinicians that attested to the fact that there was and is no complication from the excision of the corn sufficient to cause any additional structural changes in the foot and no complication from any other injuries or conditions was mentioned at that examination. The Board acknowledges that the Veteran contends that he has residuals of corn excision since service. The Board finds this history is not credible, and thus not probative, however, as it is contradicted by the absence of complaints or treatment for corns post-service, to include the negative findings in the records from the California Department of Corrections and the March 2012 VA examination. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran actually has the disability for which service connection is sought (residuals of corn excision of the left foot). In the absence of proof of such disability there is no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted above, the March 2012 VA examiner indicated corns were not present, found, visible, measured or otherwise appreciated on physical examination. The Board would also note that no visible scars from the corn excision of the left foot were found on examination either. Because the Veteran has not shown he now has, or during the pendency of this claim has had, residuals of corn excision of the left foot, he has not presented a valid claim of service connection for such disability. See 38 U.S.C.A. § 1131; See Brammer, 3 Vet. App. at 225. Accordingly, his appeal in this matter must be denied. Assuming the Veteran is alleging continuous residual symptoms from the corn removal since service in the form of development of bunions, pes planus, hammer toes, and plantar fasciitis, none of these conditions are "chronic diseases" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is not warranted. The Veteran claims that he has had a bilateral foot deformity since service. The Board additionally finds this history not credible, and thus not probative, as it is contradicted by the absence of complaints or treatment for the claimed condition either in service or until 2007 (18 years after service). The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may also be granted when the evidence establishes a nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's bilateral foot disability, including bunions, hammer toes, pes planus, and plantar fasciitis, and his active service, despite his contentions to the contrary. In that regard, the Board finds substantially probative the March 2012 and October 2012 opinions that a bilateral foot disability was less likely than not incurred in or caused by service, to include corn excision of the left foot or the wearing of combat boots. To reiterate, the examiner concluded the removal of tissue from the little toe, wearing of combat boots, or any other incident in service would not result in a structural change in the rest of the foot. The examiner further indicated these changes occurred on their own over time, greater than 40 years, and were unrelated to events in service. The examiner concluded it was not his training and experience alone, but that of the service clinicians that attested to the fact that there was, and is no complication, from the excision of the corn sufficient to cause any additional structural changes in the foot and no complication from any other injuries or conditions was mentioned at that examination. The opinion was rendered after review of the Veteran's claims file, including his service treatment records, and physical examination of the Veteran; the opinions are clearly based on an accurate history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). The only evidence of record to support the Veteran's contentions is his statements. The Board acknowledges that the Veteran is competent to report problems with his feet, to include pain and tenderness. However, his statements do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to the bilateral foot disability, it requires specialized training for a determination as to causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes 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"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his bilateral foot disability because he is not qualified to offer such opinions. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for residuals of corn excision of the left foot and a bilateral foot disability, and thus, the benefit-of-the-doubt doctrine does not apply. As such, the evidence is insufficient to support a grant of service connection. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for residuals of corn excision of the left foot is denied. Entitlement to service connection for bilateral foot disability, to include bunions, hammer toes, plantar fasciitis, and flat feet is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs