Citation Nr: 1319157 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-28 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from April to July 1977, from November 1977 to March 1978, and from May 1979 to September 1980. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). The case was most recently remanded by the Board to the RO in October 2012 to obtain additional private treatment records, service records, Reserve records, and, if needed, a supplemental opinion. An attempt was made by VA to obtain additional private, service treatment, and Reserve records. Additional private and service treatment records were subsequently added to the claims file. Consequently, there has been substantial compliance with the October 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in August 2007, and a transcript of the hearing is of record. FINDING OF FACT There has been no demonstration by competent evidence of record that the Veteran's preexisting right foot disability underwent a permanent increase in severity as a result of military service. CONCLUSION OF LAW A preexisting right foot disability was not aggravated by active service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. In this case, the RO sent the Veteran a letter in May 2005, prior to initial adjudication, which informed him of the information and evidence needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the May 2005 letter informed the Veteran of what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility. The Veteran was informed in a March 2006 letter of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the VCAA notice requirements were not completed prior to the initial adjudication, the Veteran was not prejudiced by such notice defect as the claim was readjudicated after the March 2006 notice letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA examinations with nexus opinions were obtained in September 2009 and September 2010 and added to the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination reports obtained in this case are adequate, as they are predicated on a reading of relevant medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinions on file. There is adequate medical evidence of record to make a determination on the service connection issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his August 2007 travel board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts 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. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the VLJ asked questions to ascertain the nature of any in-service event or injury and whether the Veteran's current disability is related to service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for a right foot disability, which he contends is related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1110, 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to direct-incurrence service connection benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one of direct incurrence service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Conversely, if a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for direct-incurrence service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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. 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. 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. 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. Routen v. Brown, 10 Vet. App. 183 (1997). 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). 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). Despite VA's attempt to obtain the Veteran's service treatment records, the only records on file are April 1977 medical history and medical examination reports, which do not contain any complaints or findings of a foot disability. A December 2005 VA Formal Finding on the Unavailability of Service Medical and Personnel Records is of record. The Veteran was notified in this regard in December 2005. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Russo v. Brown, 9 Vet.App. 46 (1996). No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Further, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). According to a June 1994 private medical report from The Moore Orthopaedic Clinic, the Veteran said that he injured his right foot approximately 20 years earlier and that he complained of pain from a recent injury. X-rays showed an old fracture/dislocation of the foot, with arthritic change. According to a March 1998 medical report from this clinic, the Veteran injured his right foot secondary to an automobile accident in 1974, with surgery performed at a nearby hospital in Savannah, Georgia. He complained of occasional trouble walking. The diagnosis was osteoarthritic right foot, status post 1974 Lisfranc injury. According to a January 2005 medical report from Palmetto Baptist Medical Center, the Veteran had a surgical history significant for foot surgery at age 18. VA treatment records dated in 2005 reveal that the assessment in July 2005 was foot pain secondary to deformity related to prior injury and repair. VA treatment records dated in 2006 reveal the notation in January 2006 of a history of fracture of the right foot in a 1978 Army accident. The Veteran noted in February 2006 that he injured his right foot when a pole fell on it in 1978. X-rays of the foot in February 2006 showed degenerative arthritis and small plantar and posterior calcaneal bony spurs. June 2006 medical records from Palmetto Baptist Medical Center reveal that the Veteran underwent right 1st to 3rd tarsometatarsal joint fusions for midfoot degenerative joint disease. Subsequent medical reports through August 2007 from Midlands Orthopaedics reveal that the Veteran was doing well post-surgery. The Veteran testified at his travel board hearing in August 2007 that his right foot was originally injured in an automobile accident in 1973 or 1974 in which his foot was broken, casted, and healed; and that he reinjured the foot in service in 1979 or 1980 when a tent pole fell on the foot while he was stationed at Fort Jackson, South Carolina, which resulted in his being in a cast for 8 weeks and causing permanent aggravation of the original injury. According to an August 2009 statement from W. B. Jr., the attorney who represented the Veteran in 1974 for his right foot injury, the majority of his files, including the file of the 1974 incident, were lost during Hurricane Hugo in 1989. The Veteran was examined by VA in September 2009, which included review of the claims file. X-rays showed a healed midfoot fusion with intact hardware and evidence of a healed metatarsal fracture. Right midfoot degenerative joint disease, post traumatic, was diagnosed. The examiner concluded that it was less likely as not that the Veteran current right foot disability was due to or aggravated by service injury. The examiner noted that there was no medical evidence of the tent pole incident, that the Veteran claimed it occurred in 1984 or 1985, and that he had a history of alcohol problems and lying. According to the examiner, the basic history behind midfoot Lisfranc-type injuries is that once sustained, the patient is more than likely to get midfoot arthritis. Given the fact that there was no specific documented incident that can tie the aggravation of the injury to military service, the examiner noted that he could not form an opinion of aggravation of the right foot due to service. The Veteran contended on VA evaluation by another VA examiner in September 2010 that he was actually on active duty in 1974 when he injured his right foot in an automobile accident. It was noted that the Veteran admitted to the examiner that he had been drinking. Degenerative joint disease with right foot fusion secondary to a motor vehicle accident was diagnosed. After review of the claims file and examination of the Veteran, the examiner concluded that it was less likely than not that the current right foot disorder was related to service or was aggravated thereby. The examiner found that the DD 214 and the remand information did not support the Veteran's contention that the motor vehicle accident happened while he was on active duty. The Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting healed fracture of the right foot when he entered service in 1977. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The only service medical records on file are the April 1977 pre-service medical history and medical evaluation reports. Although the Veteran did not report a foot problem on his April 1977 medical history report, and his feet were normal on physical examination in April 1977, it was noted in June 1994 and March 1998 medical reports from The Moore Orthopaedic Clinic that he had injured his right foot in an automobile accident in 1974, which required surgery. X-rays showed an old fracture/dislocation of the foot with arthritic change. Additionally, the Veteran testified at his travel board hearing in August 2007 that he originally broke his right foot in an automobile accident in 1973 or 1974, which was casted and healed. Additional evidence that the Veteran injury his right foot prior to service is the August 2009 statement from the attorney who represented the Veteran in 1974 for his right foot injury. The issue thus becomes whether the Veteran's pre-existing right foot disorder was clearly and unmistakably not aggravated beyond normal progression by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Although the Veteran had a right foot injury prior to initial service entrance in 1977, there is no medical evidence of a permanent increase in severity of the condition until a number of years after final service discharge. Additionally, VA medical opinions dated in September 2009 and September 2010, which are based on a review of the claims file and physical examination of the Veteran, conclude that it is less likely than not that the Veteran's pre-existing right foot disability was aggravated by his military service because of the lack of supporting medical evidence, including any objective evidence of the claimed tent pole injury. The examiner noted in September 2009 that the basic history behind midfoot Lisfranc-type injuries is that once sustained, the patient is more than likely to get midfoot arthritis, which also supports a finding that the current arthritis is related to the injury and not to service aggravation. Based on the above, the Board finds that there is clear and unmistakable evidence that the Veteran's pre-existing right foot disability was not permanently aggravated by service. Therefore, the presumption of soundness on entrance to service is rebutted, and the Board must consider whether the preexisting right foot fracture disability was aggravated during service pursuant to 38 U.S.C.A. § 1153. As noted above, there is no medical evidence of a permanent increase in severity of the condition until a number of years after final service discharge. Additionally, VA medical opinions dated in September 2009 and September 2010, which are based on a review of the claims file and physical examination of the Veteran, conclude that it is less likely than not that the Veteran's pre-existing right foot disability was aggravated by his military service because of the lack of supporting medical evidence, including any objective evidence of the claimed tent pole injury. The examiner noted in September 2009 that the basic history behind midfoot Lisfranc-type injuries is that once sustained, the patient is more than likely to get midfoot arthritis, which also supports a finding that the current arthritis is related to the injury and not to service aggravation. The lay statements on file have also been taken into consideration in this case. Although the Veteran is competent to report his subjective foot symptoms, such as pain, the Veteran is not competent to opine as to whether he has a right foot disability that was aggravated by service. Such opinion involves a complex medical matter, and the Veteran has not been shown to have any medical training. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Additionally, as noted above, the Veteran's contentions with respect to his right foot injury have not been consistent and, therefore, are not considered credible. According to the VA nexus opinions, the Veteran had not been consistent in his explanation for his right foot injury, as he had contended in September 2009 that the tent pole injury occurred in 1984 or 1985, while he had previously said it occurred in 1978. He told the examiner in September 2010 that he was on active duty when the automobile accident occurred in 1974, although the evidence on file does not show active service until 1977. Moreover, there is no clinical opinion on file in favor of the claim. With respect to the contention on behalf of the Veteran in April 2013 that the case should be remanded again because the RO did not adequately follow the October 2012 remand instructions with respect to obtaining Army Reserve records, the Board disagrees. An October 2012 VA development letter requested that the Veteran complete and return an enclosed VA Form 21-4138, Statement in Support of Claim, with the correct address for the Army Reserve hospital, or hospital unit, if any, in Charleston, South Carolina, to include the 3271st Army Reserve Hospital. The Veteran responded by letter later in October 2012 that the building that housed the 3271st US Army Reserves Hospital, located on Broad Street in Charleston, South Carolina, had been abandoned; and that the 3271st US Army Reserve, part of the 120th US Army Reserve HQ Command, that was previously located at Fort Jackson, South Carolina, was no longer there. Consequently, an attempt was made by VA to obtain information on the Veteran's Reserve records, as directed by the October 2012 remand. As sufficient information was not provided to VA to obtain any additional information on the Veteran's Reserve records, the Board finds that no additional action is needed. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a right foot disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs