Citation Nr: 1321936 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 06-12 550 ) 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 disorder, to include as secondary to service-connected lumbar spine and bilateral knee disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1975 to March 1976. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, declined to reopen a claim for service connection for a right foot disability. In May 2008, the Board denied the claim, and the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In July 2009, the Court granted a Joint Motion for Remand, vacating the Board's May 2008 decision and remanding the claim for compliance with the instructions in the Joint Motion. In November 2011, the Board reopened the claim for service connection for a right foot disorder and remanded the claim for additional development. The issue was again remanded by the Board in July 2012 in order to provide the Veteran with proper notice on the issue of secondary service connection, to obtain Social Security Administration disability records, and to obtain VA addendum medical opinions. This was accomplished, and the claim was readjudicated in a May 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A June 2013 statement from the Veteran's representative raised the issue of entitlement to service connection for radiculopathy of the bilateral lower extremities, secondary to service-connected lumbar spine disability, based on the February 2013 VA examination report. Further, the issues of entitlement to service connection for depression, to include as secondary to service-connected disabilities and entitlement to a total disability rating based on individual unemployability (TDIU) were also referred to the RO in the July 2012 Board remand; however, it does not appear that further action has been undertaken by the RO on these issues. Accordingly, the issues of entitlement to service connection for radiculopathy of the bilateral lower extremities, secondary to service-connected lumbar spine disability, entitlement to service connection for depression, to include as secondary to service-connected disabilities and entitlement to a TDIU have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran has a current diagnosis of a calcaneal spur in the right foot. 3. The Veteran's right foot disorder is not etiologically related to service. 4. The Veteran's right foot disorder is not proximately due to or aggravated by service-connected lumbar spine and bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for a right foot disorder, to include as secondary to service-connected lumbar spine and bilateral knee disabilities, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the 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, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In letters dated April 2004, March 2006, and July 2012, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection and secondary service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The March 2006 notice included provisions for disability ratings and for the effective dates of each claim. Any defect as to the timing of the notice was cured because the RO has readjudicated the claim since that notice was issue, most recently in the May 2013 August 2010 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence, including affording VA medical examinations. To that end, 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). The Board finds the April 2013 VA addendum opinion and findings obtained in this case to be adequate. The opinion considered all of the pertinent evidence of record and provided a complete rationale for the opinion stated. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Social Security Administration disability records, VA treatment records, private treatment records, and the Veteran's statements. Moreover, the Board finds that no further development to create any additional evidence for consideration in connection with the claim being decided is warranted. October and December 2005 letters from the Department of the Army show that the RO attempted to obtain active duty patient records from the Fort Knox Hospital and the Fort Campbell Hospital or from other service files, but a search failed to uncover any further medical records about the Veteran's treatment while in service. Further, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition at issue, calcaneal spur of the foot, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See 38 C.F.R. § 3.303(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service Connection for Right Foot Disorder The Veteran contends that service connection for a right foot disability is warranted as a result of an injury in service when a cannon barrel was dropped on his foot. During a June 2006 hearing before a Decision Review Officer, he testified that his symptoms include pain and neurological symptoms, including a complete absence of feeling in four toes of his right foot. In a June 2012 statement, the Veteran's accredited representative noted that service connection was in effect for lumbar spondylosis and multiple knee disabilities. He asserted that it was "plausible" that the Veteran's neurological symptoms in the lower extremities were caused or aggravated by his other orthopedic disabilities. As such, the Board will consider service connection for a right foot disorder on a direct and secondary basis. At the outset, the Board finds that the Veteran has a current diagnosis of a calcaneal spur in the right foot, confirmed by x-ray findings administered in the December 2010 VA examination report. The Veteran is currently service-connected for lumbar spondylosis and limited extension and laxity of the knees. Next, the Board finds that the weight of the lay and medical evidence does not demonstrate the presence of a right foot injury during the Veteran's period of service. His service medical records reflect no complaints or treatment for injuries to the right foot. During his RO hearing, and in various written statements, the Veteran contended that he injured his right foot when a cannon was dropped on his foot and he was treated at Fort Knox Hospital. As noted above, an effort to locate Army hospital service records and other service medical records, both at Fort Campbell and Fort Knox, proved unsuccessful. The Veteran also contends that he has experienced persistent pain and numbness in his right foot since the purported in-service injury. The Board, however, does not find these contentions credible. There is no mention of the alleged in-service injury in the available service medical records. Further, the Veteran's February 1976 hardship discharge examination reveals no abnormalities of the feet, including no mention of the injury or the Veteran's pain and numbness of the right foot. Further, no chronic right foot disorder was shown until many years after the Veteran's discharge from service. Private medical records from Dr. F.N.McC. and Dr. R.E.B. in October 2000 show that the Veteran was seen for severe pain in his legs. The Veteran stated that he had pain from his hips down. Knee, paralumbar, hip girdle, ankle, and foot pain were noted. The Veteran reported musculoskeletal pain for the past 10 or 15 years, approximately nine years after service separation. The Board finds that this evidence weighs against a finding that the Veteran's right foot disorder is related to service. Pursuant to the Board's May 2008 remand instructions, the Veteran was afforded VA examinations of the orthopedic and neurological manifestations of his claimed disability in December 2010. The orthopedic examiner did not have the claims file, but noted that x-rays showed the presence of calcaneal spurs bilaterally and that the Veteran reported that he had no feeling in his right foot. The Veteran reported a crush injury to the right foot in January 1976. He reported he was not treated with a cast but was given a special shoe. He indicated that he resumed duty in time after the injury and suffered no subsequent injury. The diagnoses included "prior crush injury of the right foot with calcaneal spurs on x-ray at the present time." The examiner did not clearly indicate whether the noted calcaneal spurs of the right foot were associated with service or the reported in-service crush injury. Therefore, the Board finds that the December 2010 VA opinion is of little probative value on the issue of a nexus to service. During the December 2010 neurological examination, the VA examiner opined that the Veteran had no clinically identifiable disability of the right foot that could be related to the injury he claimed to have suffered in service. While the examiner noted that the Veteran did have clinical problems, including sensory polyneuropathy in both lower extremities, confirmed by nerve conduction studies and impairment in vibration and primary monofilament light touch, he concluded that these symptoms would not be related to a crush injury to the foot. The Board finds the December 2010 VA neurologist's opinion to be highly probative. The examiner reviewed the claims file, interviewed the Veteran, performed a physical examination, and provided an opinion supported by a detailed rationale. The Veteran was afforded another VA examination in February 2013 as requested in the July 2012 Board remand. An April 2013 addendum opinion was also provided. In the February 2013 VA examination report, the examiner opined that the Veteran's right foot disorder was less likely than not caused by the claimed in-service injury. Further, the VA examiner stated that the right foot disorder was less likely than not proximately due to or aggravated by the Veteran's service-connected disabilities. A clear rationale for the opinions rendered was not provided. Thereafter, in an April 2013 addendum opinion, the VA examiner was asked to provide a rationale for the opinions stated. In this regard, the examiner noted that he reviewed the claims file in its entirety, including past VA examination reports. The examiner noted the Veteran's purported in-service medical treatment, which consisted of a purported x-ray report in service. According to the Veteran, he was told during service that no break or fracture could be determined in the x-ray due to too much swelling. The examiner noted that there was no mention of a right foot injury in any service treatment records. Also, the examiner stated that x-rays are frequently obtained of swollen joints and bones and only in very limited and rare circumstances is there too much soft tissue to adequately visualize bony structures and this, according to the examiner, almost never occurs on the foot. Therefore, the examiner stated that it was very unlikely that the in-service medical professionals would not have been able to diagnose a foot fracture at that time. Additionally, the December 2010 x-ray report was reviewed and revealed no post-traumatic deformity of the right mid foot or forefoot where the Veteran described his injury. Accordingly, the April 2013 VA examiner opined that the right foot disorder was not related to service, to include the purported crush injury from a cannon barrel. In terms of the right foot disorder being caused or aggravated by the Veteran's service-connected back or knee disabilities, the April 2013 VA examiner opined that his right foot disorder was less likely than not related to, caused by, or aggravated by the service-connected disabilities. The examiner noted that the evidence reveals polyneuropathy with no structural abnormality of the right foot. The Veteran's diagnosis are listed as limited extension of the knees and degenerative arthritis of the spine. According to the examiner, there was nothing in the medical literature to support the idea that polyneuropathy of the foot, without structural abnormalities, was related to conditions associated with the lower extremities, including knees, hips, or back consistent with degenerative arthritis. The Board finds the April 2013 addendum opinion to be highly probative as to the issue of a nexus to service and as to secondary service causation and aggravation. The Board finds that the April 2013 VA addendum opinion adequately considered the evidence of record and provided a clear rationale in support of the medical opinions rendered. The Board acknowledges that the Veteran was awarded disability benefits from the Social Security Administration (SSA). The August 2008 SSA disability determination indicated a primary diagnosis of osteoarthritis and Allied disorders and a secondary diagnosis of affective; or mood disorders. That notwithstanding, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). In the present case, SSA records demonstrate that the Veteran's primary medical issues involved osteoarthritis, fibromyalgia, spastic colon, irritable bowel syndrome, and sleep apnea. The Board finds that the evidence submitted to SSA regarding osteoarthritis discusses the Veteran's spine, not his right foot, and does not reveal any diagnosis for the alleged right foot disorder. The Board has also considered the Veteran's statements asserting a nexus between his right foot disorder and active duty service. While the Board acknowledges that he is competent to report symptoms as they come to him through his senses, a calcaneal spur, including any neurological symptoms, are not the type of disorders that a lay person can provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For the reasons discussed in detail above, the Board finds that the competent evidence of record on the question of etiology includes the December 2010 VA neurological opinion and the April 2013 addendum opinion. For these reasons, and based on the evidence of record, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's right foot disorder and service, to include as secondary to the service-connected spine and knee disabilities, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right foot disability, to include as secondary to the service-connected lumbar spine and bilateral knee disabilities, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs