Citation Nr: 1322105 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-03 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a balance disorder. 2. Entitlement to service connection for a foot disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from September 1985 to February 1986. She has subsequent unverified service in the Florida Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for balance disorder and foot disorder. The Board remanded the instant claims in May 2009, June 2011, and December 2012, for further development. In March 2009, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record and associated with the claims folder. The appellant is unrepresented in this case. The issue of entitlement to service connection for a balance disorder being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and credible evidence of record does not show that the appellant has a foot disorder due to service. CONCLUSION OF LAW A foot disorder was not caused or aggravated as a result of service. 38 U.S.C.A. §§ 101 (24), 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.306 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The duty to notify was satisfied by way of a letter sent to the appellant in March 2006. The letter advised the appellant of the information required to substantiate the claim and of her and VA's respective duties for obtaining evidence. She was also informed of how VA determined disability rating and effective dates. Under these circumstances, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board. The provided notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a claimant in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the appellant's service treatment records, and private treatment records with the claims file. No outstanding evidence has been identified. The claim was remanded in December 2012 in an effort to give her the opportunity to submit a release of information in an effort to obtain podiatry medical records from Dr. R.R. Unfortunately, the appellant did not submit a requested release of information in an effort to allow VA to obtain any records from Dr. R.R., which may be of assistance to the adjudication of the claim. The Board emphasizes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The appellant was given notice of the need to submit a release of information so that VA could obtain medical records from her podiatrist or for her to submit evidence from her podiatrist of the nature which indicates treatment of a foot condition while in service. She has an obligation to assist in the adjudication of her claim and cannot remain passive when she has or may have access to relevant information. The appellant was not offered VA examinations in connection with this claim. The Board acknowledges that the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet.App. 79 (2006). The appellant claimed that she had a flat foot condition and a stretched tendon condition in service. There is no evidence, other than her testimony of such, that she had any foot condition in service which showed she had a flat foot condition or a stretched tendon in service. The evidence of record shows the complete opposite. As such, there is no reason to provide her a VA examination for opinion when there is no evidence that this condition existed at that time. The Board observes that the appellant made a claim for Social Security benefits. The claim was remanded for any medical records obtained in connection with that claim. A June 2012 Memorandum of Formal Finding of Unavailability of Social Security Records was associated with the claims folder. The Memorandum indicated, in pertinent part, that the Social Security Administration was contacted and it was ascertained that no records were available for the appellant. The appellant was also offered the opportunity to testify before the Board in this case. She testified at a March 2009 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing fulfill two duties to comply with the above 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. Here, the undersigned VLJ identified the issue on appeal. He sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, compliance was made with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claim based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). Service Connection The appellant contends that service connection for a foot disorder is warranted based on service incurrence. She maintains that she had flat feet while on training while serving in the Florida Army National Guard. She related that she told the examiners upon entrance of her flat feet, and that while in training, her tendons stretched and she was offered an operation on her feet as a result. She stated that she has had foot problems since that time. Pursuant to 38 U.S.C.A. § 101(24) , "active military, naval, or air service" includes "active duty, any period of active duty for training [ADT or ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training [IDT or INACDUTRA] during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002). Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or for injury incurred during inactive duty training. Every person employed in the active military, naval, or air service 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. §§ 1111 , 1137, 1153 (West 2002). Even if a person has had a period of active duty, that service alone does not make the claimant a "Veteran" for the purpose of the application to any period of service which is ACDUTRA or INACDUTRA the presumption of soundness upon service entrance, the presumption of aggravation (of a pre-existing disorder) or the presumption of service incurrence of chronic diseases which are generally applicable to veterans who had active duty. See generally Smith v. Shinseki, 24 Vet.App. 40 (2010); (citing Acciola v. Peake, 22 Vet.App. 320 (2008) and Biggins v. Derwinski, 1 Vet.App. 474, 477-78 (1991) (in which the claimants had only ACDUTRA and no active service, as standing for the proposition that without previously established veteran status, the presumptions of service connection and sound condition are inapplicable). Further, in Smith v. Shinseki, the Court found that "in light of the absence of evidence of an examination made contemporaneous with [entry into a period of ACDUTRA] the presumption of sound condition could not apply. Indeed, in cases where a claim is based on a period of active duty for training, the Court held that the presumption of aggravation under [38 U.S.C.A. ]§ 1153 is not applicable. Put another way, "the presumption [sic] of aggravation is not applied to persons whose claims are based on a period of active duty for training." Id. Thus, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See 38 U.S.C. §§ 101(2), (22), (24);38 U.S.C. § 1110 ; Acciola v. Peake, 22 Vet.App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet.App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the active duty for training alone. See Acciola, 22 Vet.App. at 324. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet.App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service entrance records are negative for any evidence of a foot disorder in September 1984. Clinical evaluation of the feet at that time were normal. On a retention examination in January 2003, a burn scar, well-healed, was noted on the right foot. In July 1998, the appellant was seen complaining of a pain of the right 5th toe while serving in the Florida Army National Guard. It was noted that she had been to a podiatrist and shaving of the callus had been performed. The examiner diagnosed minimal callus, requiring excision of the joint. No other findings, treatment, or diagnosis of the feet have been shown in her service treatment records. It is important to note, that although no records of the treatment from the appellant's private podiatrist have not been associated with the claims folder, a note was received from his office in July 2006 indicating, in pertinent, that the appellant's first visit to his office for treatment was in December 1997, therefore no medical records prior to that time (during ACDUTRA) could be submitted. The appellant testified before the undersigned VLJ at a Travel Board hearing in March 2009. She testified that she told the medical examiner upon entrance to service that she had flat feet and they told her they would send her to have them fixed. She stated that as a result of her flat feet, that caused her to have foot problems consisting of stretched tendon during her basic training. She also testified that she was given foot inserts, but they did not help. She also maintained as such, she has continued to have foot problems since service. She also testified that no civilian doctor has told her that her foot disorder was due to service. As for the appellant's claimed foot disorder, there is evidence that she has been seen for foot complaints, therefore indicating that she has a present disability. The first prong of Sheeden has been met. However, there is no indication of a foot disorder incurred in service, or that a preexisting foot problem was aggravated during such service. Therefore, prongs two and three of Sheeden are not shown. At no time during ACDUTRA is there evidence that the appellant had flat feet or that she had a stretched tendon in service or as a result of service. On one occasion, while she was in the National Guard, but not during a verified period of ACDUTRA, she was seen for a complaint of a tender callus. At that time, it was noted that she was seen by a private podiatrist and the appellant had been receiving shaving of the callus. An excision of the joint was considered, but the medical evidence of record does not indicate that this occurred during service or via her private podiatrist. The only other indication of a foot disorder was a burn scar on the right foot. This was not complained of by the appellant and is not indicated to have occurred during her period of ACDUTRA. The appellant has testified at the March 2009 Travel Board hearing that she told the examiner on entrance examination in connection with ACDUTRA, that she had flat feet. Thereafter, she stated that the flat feet resulted into a stretched tendon condition. The appellant's statements and sworn testimony asserting that her flat feet resulted in a foot disorder in service has also been considered. On this matter, the Board acknowledges that lay evidence concerning symptoms, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The appellant is clearly competent to state that she experienced foot pain in service, and that she continues to experience the residuals thereof. However, the Board does not believe the appellant is competent to attribute such symptomatology to an acquired foot disorder. Moreover, even if the appellant is found to be competent, the Board is within its province to weigh that testimony and to make a credibility determination. The Board does not find the appellant's statements to be credible, as there is internal inconsistency, with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet.App. 498 (1995). She claimed a foot disorder (stretched tendons) as a result of service and she stated she received treatment for this condition during ACDUTRA. There is no medical evidence of such treatment, and the one service treatment record reflecting treatment during an unverified period of service, indicates that the appellant had been receiving private podiatry treatment for callus removal and seeing a private podiatrist for a year. This period was not during her ACDUTRA and is not indicative of a foot condition considered a stretched tendon disorder that she claimed occurred during her ACDUTRA period. In fact, the appellant testified herself, that no civilian doctor ever told her that she had a foot disorder that was a result of service. Her statements are not credible and therefore lack probative value. See, e.g. Madden v. Gober, 125 F.3d 1477 (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet.App. 341 (1999) (although Board must take into consideration a n appellant's statements, it may consider whether self-interest may be a factor in making such statements). A review of the totality of the evidence does not show a foot disorder was incurred or aggravated during the appellant's ACDUTRA service. In light of the above discussion, the Board concludes that the evidence is against the claim for service connection for a foot disorder . As such, the appeal is denied. ORDER Service connection for a foot disorder is denied. REMAND In the Board's December 2012 remand, the issue of an ear disorder was raised. The appellant testified during her March 2009 Travel Board hearing, that she was treated for a balance disorder during service, and that it was related to a punctured ear, or other ear symptoms such as an ear infection, that were caused by exposure to loud noises such as weapons fire, grenades, and use of a headset while training for duties with a signal unit. She also asserted that her ear problems were related to a fall off of a locker. From a liberal reading of the record, the issue of service connection for an ear disorder was raised, and her argument was essentially that she may have a balance disorder that was caused or aggravated by her ear disorder. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991); 38 C.F.R. § 3.310 (2012).. As a result, the Board found the claim for an ear disorder to be "inextricably intertwined" with the issue of service connection for a balance disorder, now to be construed on a direct and secondary basis. See generally Parker v. Brown, 7 Vet.App. 116 (1994); Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). The claim for service connection for an ear disorder was to be adjudicated, followed by a readjudication of the claim for service connection a balance disorder on a direct and secondary basis. A review of the claim shows that the claim for service connection for an ear disorder was not adjudicated, nor was the claim for a balance disorder readjudicated on a direct and secondary basis. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with remand orders. Stegall v. West, 11 Vet.App. 268, 271 (1998). As such, compliance with the terms of a remand is necessary prior to further appellate review and, if not, the Board itself errs in failing to ensure compliance. Accordingly, the case is REMANDED for the following action: Adjudicate the appellant's claim for service connection for an ear disorder, followed by readjudication of the issue of service connection for a balance disorder on a direct and secondary to the ear disorder (caused or aggravated)on appeal. If any of the benefits sought on appeal are not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. The record should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs