Citation Nr: 1322381 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 06-31 981A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bunion of the left foot, to include as secondary to the service-connected right and left knee disabilities. 2. Entitlement to an earlier effective date for the assignment of a 10 percent rating for a right knee scar disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1973 to July 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the RO in Atlanta, Georgia. In February 2010, the Veteran presented testimony at a Board hearing, chaired by a Veterans Law Judge, seated at the RO. A transcript of the hearing is associated with the claims file. The Veterans Law Judge who chaired the hearing is no longer employed by the Board. In June 2012, the Veteran was notified that he was entitled to another hearing by the Veterans Law Judge who would decide his appeal. He was advised that if no response was received within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, he has not responded to the letter, and the Board finds that adequate steps have been taken to ensure due process regarding the hearing. The issue of service connection for bunion of the left foot was previously remanded by the Board in April 2010, December 2010, and August 2012 for further evidentiary development. This was accomplished, and the claim was readjudicated in an April 2013 supplemental statement of the case. For this reason, the Board concludes that 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). The issue of entitlement to an earlier effective date for the assignment of a 10 percent rating for a right knee scar disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim for service connection has been accomplished. 2. The Veteran has a current diagnosis of residual hallux valgus (bunion) of the left great toe metatarsophalangeal (MTP) joint post-surgical procedure. 3. The Veteran's left foot bunion is not etiologically related to service. 4. The Veteran is service-connected for right knee osteochondritis and left knee osteoarthritis. 5. The Veteran's left foot bunion is not proximately due to or aggravated by service-connected right and left knee disabilities. CONCLUSION OF LAW The criteria for service connection for bunion of the left foot, to include as secondary to the service-connected right and left 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 a letter dated March 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings, effective dates, and included language which explained how to establish a claim for secondary service connection. Further, the Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence, including service treatment records, post-service VA treatment records, Social Security Administration disability records, and statements from the Veteran. The Veteran was also afforded a VA examination in May 2010. Supplemental VA medical opinions were obtained in December 2010 and September 2012. Subsequently, the RO requested an independent medical opinion from the Appeals Management Center which was obtained in April 2013. 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). For the reasons discussed in detail below, the Board finds that the December 2010 and April 2013 medical opinions are adequate as they considered all of the pertinent evidence of record and provided a complete rationale for the opinions stated. Moreover, 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. For these reasons, the Board finds that VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. 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 of a left foot bunion 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). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012). 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 Left Foot Bunion During the February 2010 Board hearing, the Veteran testified that he experienced left toe pain during service and since service separation. In the May 2010 VA examination, the Veteran stated that he began having problems with both feet sometime in 1975 after he underwent surgery on his right knee during service. The Veteran has also alleged that his left toe bunion is due to his service-connected knee disabilities. Accordingly, the Board will consider whether the Veteran's left foot bunion is due to service, and, alternatively, whether it is due to or aggravated by his service-connected knee disabilities. At the outset, the Board finds that the Veteran has a current diagnosis of hallux valgus (bunion) of the left great toe. See May 2010 VA examination report. The Veteran is currently service-connected for right knee osteochondritis and left knee osteoarthritis. During the February 2010 Board hearing, the Veteran testified that he experienced left toe pain during service and since service separation. Specifically, the Veteran stated that foot pain began after he underwent surgeries to his right knee during service. He contends that he received a spinal anesthetic during these procedures and relates his foot pain to these in-service events. See December 2010 VA medical opinion. For the reasons set forth below, the Board finds that the Veteran's bunion of the left foot is not related to service, including the in-service right knee surgeries, and is not caused or aggravated by the service-connected knee disabilities. Service treatment records are negative for any complaints, treatment, or diagnoses relating to the Veteran's left foot. Although a service separation examination report is not of record, in a Report of Medical Examination, dated October 1974, clinical findings reveal that the Veteran's feet and lower extremities were normal. Further, despite numerous complaints and treatment for bilateral knee pain, including two right knee surgeries in January 1975 and February 1975, the Veteran did not report foot or toe pain during any of these treatment sessions. The Board finds that this evidence weighs against a finding that the Veteran's left foot bunion is related to service. Further, the medical evidence of a left foot bunion dates back to March 1977, two years after service separation, where a clinical note revealed left great toe hallux valgus developing. In an October 2001 evaluation, the Veteran reported a history of chronic left large toe pain. A May 2002 podiatry consultation reveals complaint of chronic left foot pain since 1978. During a May 2010 VA examination, the Veteran reported that he began having foot pain sometime in 1975 after he had surgery on his right knee. The Veteran was afforded a VA examination in May 2010 to assist in determining the etiology of the left foot bunion. The examiner diagnosed the Veteran with residual hallux valgus of the left great toes metatarsophalangeal (MTP) joint post-surgical procedure, pes planus, and degenerative arthritis of the MTP joint of the left great toes of a mild to moderate degree. The May 2010 examiner opined that the left toe bunion identified on the examination was less likely than not caused by or worsened by the Veteran's period of active duty. No rationale was given for this opinion. Accordingly, the Board finds the May 2010 opinion to be of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); see also Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (unsupported medical opinions carry negligible probative weight). The claim was remanded in December 2010 for an addendum opinion to address the rationale. The remand requested an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's bunion was etiologically related to service, or was caused or permanently worsened by his service-connected right and left knee disorders. The same examiner prepared an addendum in December 2010 in which he noted that the Veteran related the development of the left bunion to having right knee surgery. Specifically, the Veteran attributed the bunion to spinal anesthesia during these procedures. The VA examiner opined that the Veteran's development of a bunion was less likely than not related to his period of active duty service or to the fact that he had surgery on the right knee, which was the opposite extremity to the one that he had the bunion, or to the left knee condition, which is predominately osteoarthritis with mild genu varus. The examiner stated the following: "I know of no causative relationship to the right or left knee condition and the veteran's foot condition." The Board finds that this evidence weighs against a finding that the Veteran's left foot bunion was related to service or was caused or aggravated by service-connected knee disabilities. In September 2012 the examiner who rendered the May 2010 and December 2010 medical opinions provided a supplemental opinion. The examiner opined that it was less likely than not that the Veteran's left foot bunion was permanently worsened by service-connected right and left knee disabilities. The examiner reasoned that the Veteran had no significant malalignment of either the right or left knee, and therefore, the knee condition would in itself not worsen the bunion condition. Subsequently, the RO requested an independent medical opinion from the Appeals Management Center because the claims file was not reviewed by the September 2012 examiner prior to rending the opinion. In the April 2013 independent medical examination report, the examiner reviewed the claims file, reviewed x-ray reports, and diagnosed the Veteran with left great toe medial first metatarsal head osteotomy with hallux valgus deformity and degenerative joint disease of the first MTP joint. The April 2013 examiner stated that by definition, a bunion is a structural deformity of the first ray. Generally, there is a deviation of the first metatarsal (towards the midline of the body) and lateral drift of the distal segment to include the proximal and distal phalanx. According to the examiner, this created a deviation of the first MTP joint and a dorsomedial bump at the joint level. Following a review of the current literature, the examiner noted that there was no medically based scientific evidence to support the Veteran's claim that knee pain or arthritis caused a left sided bunion. The examiner stated that bunions were familiar and caused by a pronatory gait cycle. Further the examiner noted that bunions were acquired over time, thus they were as least as likely as not part of a normal aging process. In conclusion, the April 2013 examiner opined that it was less likely than not that the Veteran's claimed left bunions were proximately due to or aggravated by his service-connected right and left knee conditions. The Board finds that the April 2013 medical opinion weighs against the Veteran's claim for service connection. Upon review of all the evidence of record, both lay and medical, the Board finds that the December 2010 and April 2013 medical opinions to be highly probative as it pertains to the issue of a nexus to service and as to whether the Veteran's left toe bunion was caused or aggravated by his service-connected knee disabilities. The Board has considered the Veteran's statements purporting to relate his bunion to service or to his service-connected knee disabilities; however, even if assigned some limited probative value, the Veteran's own opinions are nevertheless outweighed by the highly probative medical expert opinions noted above. While the Board acknowledges that the Veteran is competent to report symptoms as they come to him through his senses, a bunion is not the type of disorder that a lay person, such as the Veteran, can provide competent evidence on questions of etiology. See Layno, 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, 10 Vet. App. 67, 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Instead, the medical opinions discussed above considered the Veteran's statements, reported and considered the relevant medical history of record, discussed the in-service knee surgeries, and provided opinions based on a clear rationale and medical literature. See Nieves-Rodriguez, 22 Vet. App. at 295 ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). For these reasons, and after a careful review of the entire record, the Board finds that the weight of the evidence demonstrates that the Veteran's left toe bunion is not related to service and was not caused or aggravated by the service-connected knee disabilities. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bunion of the left foot, to include as secondary to the service-connected right and left knee disabilities is denied. REMAND In a July 2012 rating decision, the RO granted a compensable rating for the Veteran's service-connected right knee scar and assigned a 10 percent disability rating effective March 2, 2012. In August 2012, the RO received the Veteran's notice of disagreement with the effective date assigned for the right knee scar evaluation; however, no statement of the case was issued addressing the claim. Consequently, the Board must remand the issue for the RO to issue a statement of the case and to give the Veteran an opportunity to perfect an appeal of the issue by submitting a timely substantive appeal. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran addressing the issue of entitlement to an earlier effective date for the assignment of a 10 percent rating for a right knee scar disability. The Veteran must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs