Citation Nr: 1320818 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-30 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a bilateral foot disability, claimed as degenerative bone disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to August 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. That decision, in relevant part, denied service connection for a degenerative bone disease. The Veteran timely appealed the issue. Pertinently, VA has recharacterized the original claim of service connection for degenerative bone disease to more accurately reflect the Veteran's contentions that service connection is warranted for a disability claimed as degenerative bone disease of the feet, as reflected above. This matter has been before the Board previously in November 2010, May 2011, and December 2012. Each time the Board remanded the Veteran's claim for additional development, including for the provision of VA examinations and the collection of treatment records. The Veteran was scheduled for a Central Office hearing in July 2012. Notice was sent to his last known address in June 2012, but it was returned as undeliverable, and he did not report for the hearing. The record reflects that a copy of this notice was also sent to the Veteran's accredited representative. In a July 2012 informal hearing presentation, submitted following the Veteran's scheduled hearing date, the Veteran's representative indicated no intention to reschedule. Review of the Veteran's file on the Virtual VA paperless claims processing system reveals additional VA treatment records relevant to the claim not contained in the Veteran's physical claims file. In the Veteran's Written Brief Presentation, dated April 1, 2013, the Veteran's representative sets forth an argument as to why there was clear and unmistakable error (CUE) in the August 14, 1999 rating decision that denied service connection for PTSD. The RO has not adjudicated this issue in the first instance, therefore the Board does not have jurisdiction over it. The issue of whether there was CUE in the RO's rating decision dated August 14, 1999 is REFERRED back to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (The Board does not have jurisdiction over issues not yet adjudicated by the RO). FINDINGS OF FACT 1. The Veteran does not currently have a degenerative bone disease of the feet. 2. The Veteran's disturbance of skin sensation of the feet did not have its onset in active duty service and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. 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. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). The VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and, (5) effective date. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See id., at 486. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The duty to notify has been satisfied. A VCAA notice was sent to the Veteran on October 11, 2005. He was provided notice compliant with Dingess in November 2010, after which the claim was readjudicated multiple times. The duty to assist has also been satisfied. The Veteran's available STRs and post-service medical records have been associated with the file. The Board acknowledges that the Veteran's complete service treatment records are not associated with the claims file. Measures taken in an attempt to obtain these records are described in a December 2010 memorandum, and he was notified of these efforts by letter dated December 7, 2010. In that letter, he was advised to submit whatever evidence he was in possession of to substitute for the missing STRs, and he was given examples of the types of evidence to provide. It was sent to the address the Veteran had recently provided to VA staff in November 2010, which he explained was his sister's home. There is no indication that it was undeliverable or returned. To date, the Veteran has not responded to this notice. The Veteran has been afforded VA examinations, most recently in January 2013, and the reports are included in the file. The Board finds the most recent examination to be adequate for adjudicatory purposes as it was rendered with a full review of the file, consideration of the Veteran's complaints, and with explanatory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In regard to the Board's November 2010, May 2011, and December 2012 remands, the Board finds that there has been substantial compliance with the remand directives, which included scheduling a VA examination and obtaining additional treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993). Laypersons are also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Medical matters of diagnosis and etiology, however, are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Given the absence of a complete set of service treatment records in this case, the Board points out that, in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with these heightened duties in mind. The case law does not, however, lower the legal standard for proving a claim but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran contends that he has a current foot disability, claimed as a degenerative bone disability, due to marching while wearing heavy gear during active duty service. For the following reasons, the Board finds that service connection for a foot disability is not warranted. At his September 1979 entrance examination, the only available STR, the Veteran's feet were clinically evaluated as normal. At the October 1998 VA examination, the Veteran complained of having painful feet since he was a child. X-rays were taken, and found to be normal, but arthritis in the first metatarsophalangeal joint of the right foot was diagnosed. No opinion on etiology was given. In April 2005, X-rays of the right foot revealed mild degenerative changes of the first metatarsophalangeal joint. In December 2007, the Veteran complained of pain in both feet, and he was given a referral to the podiatrist. In April 2010, the Veteran complained of foot pain for the previous three years. In June 2010, the Veteran attended a podiatry clinic, complaining of pain under the balls and in the arches of his feet. He indicated he had no history of trauma. X-rays were taken in May 2010, and no arthritic changes were seen. A bipartite sesamoid was observed. The physician's assessment was metatarsalgia, and he was recommended to follow up on whether the sesamoid was congenitally bipartite or fractured. At the November 2010 VA examination, the Veteran complained of soreness, paresthesia, numbness, and swelling sensations. He said his feet have been painful since before service, and the symptoms were unchanged since service. Pes planus was diagnosed. The examiner noted that X-rays were taken, and did not show any degenerative changes. At the September 2011 VA flat foot examination, the Veteran reported that he had experienced foot pain since he was a child, but that it has gotten worse as he has aged. At the January 2013 VA examination, the Veteran complained of painful and numb feet. He complained that his feet had been painful for years, and that the pain is constant. The VA examiner diagnosed the Veteran as having an "other" foot condition, disturbance of skin sensation. He noted that both the feet and the legs had a reduced sensation to light touch. X-rays were normal, but showed a bipartite sesamoid bone in the right foot. The January 2013 VA examiner then opined that the disturbance of skin sensation was not likely related to service. He was not able to find any evidence, including the Veteran's lay statements, of any trauma that would lead to the type of foot pain the Veteran describes, which he believed was related to peripheral nerve pathology. He noted the Veteran's metatarsalgia in 2010, and that it was no longer present because there was no pain on palpation. He opined that the bipartite sesamoid was congenital and not fractured, again because there was no pain on palpation. In addressing whether pes planus could have been aggravated in service to lead to the current disturbance of skin sensation, the VA examiner stated that the current condition is nothing that pes planus could cause. In regard to service connection, the Veteran currently has a disability manifested by a disturbance of skin sensation. Because he does not have a disability that could be characterized as a degenerative bone disease of the foot, service connection for that disability cannot be granted as a matter of law. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet.App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim). The analysis will continue in regard to the Veteran's disturbance of skin sensation. The Board acknowledges the record contains evidence showing arthritis and degenerative changes in the right foot. Under McClain v. Nicholson, the requirement that a claimant have a current disability before service connection may be granted is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. 21 Vet. App. 319, 321 (2007). Here, the Veteran filed his claim in September 2005, after receiving the arthritis diagnoses in October 1998 and the degenerative changes diagnosis in April 2005. Degenerative changes have not been found in either foot during the pendency of this claim, and are therefore not under consideration. The Veteran has asserted that his bilateral foot disability resulted from long marches while carrying heavy equipment. Although his STRs are missing, the Board finds it credible that these sorts of marches with heavy equipment occurred and that the Veteran took part in them. 38 U.S.C.A. § 1154(a). The final inquiry is whether there is a nexus, or relationship, between the incident in service and the current disability. The preponderance of the evidence is against such a relationship. The January 2013 VA examination report noted that the Veteran did not complain of any type of trauma that could cause disturbance of skin sensation, and instead suggested that it was related to peripheral nerve pathology. He further opined that pes planus could not cause disturbance of skin sensation. He also opined that the bipartite sesamoid was congenitally bipartite, rather than fractured, because there was no pain on palpation. The Board finds this opinion to be the most probative, as it was rendered after a review of the records and full in-person examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). As noted above, the Veteran attributes his current bilateral foot disability to long marches while carrying heavy equipment. As a layperson, he is competent to attest that his feet hurt after such marches, Barr v. Nicholson, 21 Vet. App. 303 (2007), but he has not been shown to have the medical training or expertise to competently opine on whether long marches with heavy equipment caused any disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Accordingly, the preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs