Citation Nr: 1322116 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-06 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a left foot disorder as secondary to right foot disorder. 2. Entitlement to service connection for a back disorder as secondary to right foot disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from June 15, 1976, to June 30, 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, in which the RO denied the claims on appeal. The Board remanded the case, most recently in December 2012, for further evidentiary development, and adjudication. Pursuant to the Board's remands, the agency of original jurisdiction (AOJ) has made every attempt to rebuild the Veteran's claims file, including obtaining treatment records from multiple VA medical centers, and scheduled the Veteran for a VA examination, which was conducted in January 2013. The Veteran was then provided a supplemental statement of the case (SSOC) in March 2013, in which the AOJ again denied the Veteran's service connection claims. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In July 2008, the Veteran withdrew his prior request for a Board hearing, in writing. 38 C.F.R. § 20.704 (2012). FINDINGS OF FACT 1. A right foot disorder clearly and unmistakably existed prior to active duty and clearly and unmistakably was not aggravated by active duty. 2. The Veteran does not have a left foot disorder that is due to or aggravated by service-connected disability. 3. The Veteran does not have a back disorder that is due to or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. A right foot disorder, diagnosed as right foot tendon injury and mild diffuse osteopenia/osteoporosis, existed prior to service and was not aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The Veteran does not have a left foot disorder that is due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. The Veteran does not have a back disorder that is due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in June 205, which predated the September 2005 rating decision. See id. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claims of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As was noted in the multiple Board remands of this case, at some point after the Veteran's appeal was initially certified to the Board, a portion of the Veteran's claims file, including his original service treatment records, service personnel records, a rating decision, and other medical evidence, was misplaced. The Board then remanded this matter in order that VA procedures, which govern the specific steps must be taken when a Veteran's file has been lost, be observed. M21-1MR, Part III, Subpart ii, Chapters 1-8. Based on the requests outlined in the Board's remands, an exhaustive search of the Records Management Center, and the VA Medical Centers (VAMCs) in Huntington, West Virginia; Lexington, Kentucky; and Pittsburgh, Pennsylvania, was undertaken. Negative responses were received from the Records Management Center and included in the Veteran's claims file, as were treatment records received from the identified VAMCs dated from December 2001 to the present. The Kentucky Department of Veteran Affairs was also contacted and requested to provide copies of any documents it may have which would have been filed in the Veteran's claims file, but no such documents were located. Finally, the Tennessee Valley Healthcare System and the Louisville RO were contacted based on notations found in the Veteran's records. Negative responses were received from these organizations. At this point, the Board notes that the portion of the Veteran's claims file containing his service treatment records, service personnel records, initial rating decision, and other relevant medical records, as well as relevant procedural documents such as the Veteran's initial claim, notice of disagreement, and substantive appeal, remains missing, despite the exhaustive attempts by the AOJ to retrieve or recreate the documents. There is no indication that there is any other repository that would have any further information pertaining to the Veteran's claims; thus, the Board finds that VA has discharged its duty to assist the Veteran in supporting his claims. 38 C.F.R. § 3.159(c)(2). There is otherwise no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In cases such as these, where the service treatment records and/or service personnel records are largely unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Cromer v. Nicholson, 19 Vet. App. 215 (2005). The evidence of record contains report of an examination requested by VA and performed in January 2013 concerning his claimed right foot disorder. The Board finds that the January 2013 VA examination report is thorough and contains sufficient information to decide that issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the Veteran's claims for service connection for left foot and back disabilities, the Board is aware that no VA examination was provided to the Veteran in conjunction with these claims but notes that the record does not call for one. See 38 C.F.R. § 3.159(c)(4) (2012). In this case, as discussed below, because the question of secondary service connection for left foot and back disorders turns on the outcome of the right foot issue, further evidentiary development is not required. As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Criteria & Analysis The Veteran is contending that he has a pre-existing right foot disorder that was aggravated during active duty. He also contends that he developed disabilities of the left foot and back secondary to his initial right foot disability. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. § (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence both that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), which summarized the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability. The Federal Circuit in Wagner held that, when no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. 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.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for 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. On the other hand, if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 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 section 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.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096. Although, as noted above, the Veteran's service treatment records are unavailable for the Board's review, from the December 2007 statement of the case it can be gleaned that a right foot scar was noted on examination at entry into service and that the Veteran complained of pain in the right foot on June 21, 1976-less than a week after beginning his period of active duty. At that time, the Veteran reported a pre-service history of putting his foot through a car windshield and cutting the tendons on the anterior portion of the foot. This was noted to be an old injury that existed prior to service, and the Veteran's complaints of a painful scar were also noted. The Veteran was separated from service after just 15 days; he has reported that his swift separation from active duty was due to his right foot problems. However, although a scar on the Veteran's right foot was apparently noted at his induction physical examination, the cause of this scar was apparently not investigated, and no underlying physical defects were noted at that time. Based on such examination report and the available evidence, the Veteran is presumed to have entered service in sound condition as it pertains to his right foot. 38 U.S.C.A. § 1111. Post-service treatment records from various VAMCs reflect that the Veteran has sought treatment for complaints of pain and numbness in his right foot and leg. However, these complaints have been diagnosed on multiple occasions, including by multiple VA neurologists, as diabetic peripheral neuropathy of the right lower extremity. No other diagnosed right foot disorder appears in the Veteran's post-service treatment records. In addition, the Veteran was provided VA examination in January 2013. At that time, the examiner reviewed all available records and conducted a thorough physical examination of the Veteran. He was diagnosed with an injury to the tendons of the right foot that occurred in 1975, as well as mild diffuse osteopenia/osteoporosis of the right foot with no acute fracture. The examiner noted that the Veteran was only in service for approximately two weeks. He reported having injured his right foot in 1975, prior to entering active duty, when the stock car in which he was riding crashed, sending his foot through the windshield. He reported that the tendons to his right toes were severed in the accident and that he required surgical repair and six months of rehabilitation. The Veteran also reported that following the injury, he had pain in his right foot after walking and running and was unable to move his toes, leading to a restriction of activity. The Veteran further reported experiencing pain in his right foot after only a few days of service and stated that he was discharged after fifteen days on active duty due to his right foot disorder. The examiner noted a scar on the Veteran's right foot with impaired sensation to touch. He was found to be unable to wiggle his right toes. Radiological evaluation revealed osteopenic bones and mild degenerative narrowing of the joint spaces. The examiner concluded that the Veteran's right foot disorder clearly and unmistakably both pre-existed active duty and was not worsened thereby. In so finding, the examiner pointed to the Veteran's report of having injured his right foot in 1975, requiring surgery and six months of rehabilitation and leading to restricted activity and pain on walking or running, as well as the scar on his right foot noted at entry. In addition, the examiner reasoned that it was not possible that the mere fifteen days the Veteran served on active duty could have aggravated the pre-existing injury. The Board concludes that clear and unmistakable evidence exists in the record to rebut the presumption of soundness. First, statements currently in the record document that the Veteran's entrance medical examination noted a scar on his right foot. His service treatment records further indicate that the Veteran reported to military personnel, upon developing pain in his right foot six days into his period of active duty, that his right foot disorder preceded active duty. The Veteran is competent to indicate that he injured his right foot prior to entering active duty, with chronic right foot pain thereafter. This is supported by the fact that right foot scarring was noted on examination at entry into service. The Court has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of a veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994). Likewise, the Veteran also indicated at his January 2013 VA examination that he severely injured his right foot in 1975, prior to his entry into service. There is no indication that the Veteran claims to have separately injured his foot while on active duty. Next, the evidence also indicates that the right foot disorder clearly and unmistakably was not aggravated by active duty service. In so finding, the Board looks to the conclusions of the VA examiner, who examined the Veteran and, based on physical findings and the Veteran's report of his pre-service right foot injury, concluded at the January 2013 evaluation that the disorder both pre-existed service and was not aggravated by active duty. There is no contrary opinion of record. Therefore, as clear and unmistakable evidence exists to show that the Veteran's right foot disorder both pre-existed service and was not aggravated by active duty service, the presumption of soundness is rebutted. The Board notes that there are instances where the Veteran has subsequently complained of pain in his right foot, such as at the VA evaluation in January 2013. However, aside from unrelated diabetic neuropathy, the evidence does not indicate actual pathology beyond that which pre-existed active duty. Radiographic imaging of the right foot in January 2013 revealed no fractures and only mild osteopenia and degenerative narrowing of the joint spaces. Further, pain alone or flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Davis v. Principi, 276 F.3d 1341, 1346- 47 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Therefore, although it is not clear the extent to which the Veteran's right foot disorder was noted at his induction physical examination, the Board finds that clear and unmistakable evidence exists to show that it existed prior to military service and that it clearly and unmistakably was not aggravated by active duty. There is no contrary medical opinion. The Veteran does not claim, and the record does not show that left foot or back disability had its onset in service. The Veteran is claiming that pertinent disability is due to right foot disability that he claims is service-connected. Thus, as a matter of law, the Veteran's claims for service connection for a left foot disorder and a back disorder as secondary to a right foot disorder must fail. In that connection, the Board finds that it is clear from the record, including statements in the rating decision and SOC, that the Veteran intended to seek service connection for his left foot and his back only on a secondary basis to his claimed right foot disorder. Because the condition to which the Veteran claims his left foot and back disabilities are secondary has not been service connected, the claims for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran's claims for secondary service connection must be denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). For all the foregoing reasons, the Board finds that the Veteran's claims for service connection for a right foot disability, a left foot disability, and a back disability must be denied. In reaching its conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a back disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs