Citation Nr: 1322690 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 07-01 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1972. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Nashville, Tennessee, which, inter alia, denied the Veteran's claim. In March 2008, the Veteran presented testimony before the undersigned Veterans Law Judge during a Travel Board hearing at the Nashville RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In September 2008 and August 2010, the Board remanded the claim for additional development. The claim was again remanded in November 2012 in order to obtain an addendum medical opinion regarding whether the Veteran's bilateral calcaneal spurs are at least as likely as not causally related to his active military service. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As the requested development has been carried out, the Board is satisfied that there has been full compliance with its remand directives. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's current bilateral foot disorders are not causally related to a disease, injury or event in service, and did not manifest within one year of separation from service. CONCLUSION OF LAW The Veteran's current bilateral foot disorders were neither incurred in, nor aggravated by active service and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated October 2005, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). An April 2006 letter satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claim was subsequently readjudicated in a December 2006 Statement of the Case, which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as VA examination reports dated October 2009, March 2010, October 2010 and December 2012. Additionally, the claims file contains the Veteran's personal statements and testimony in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the examination reports shows that the examiners reviewed the pertinent evidence of record, elicited from the Veteran his history of symptomatology and treatment, performed comprehensive examinations, and provided the examination results. Additionally, the Board acknowledges that it found the October 2009 examination and March 2010 addendum reports inadequate for rating purposes because the examiners failed to comment on the private medical evidence, including a private opinion linking the Veteran's foot disorder to service. The Board further found the October 2010 examination report inadequate because the examiner did not provide an opinion as to whether the Veteran's bilateral calcaneal spurs were causally related to his military service. However, the December 2012 examiner noted that he had reviewed the complete evidence of record and provided a well-reasoned explanation for his opinion that the Veteran's calcaneal spurs were less likely than not related to his military service. Accordingly, the Board finds the VA examination reports, when taken as a whole, to be adequate upon which to base a decision in this case. Furthermore, as noted the Veteran was afforded a Travel Board hearing in March 2008. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above the 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 Board finds that the hearing was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's statements , as well as those of his representative, demonstrated actual knowledge of the elements and evidence necessary to substantiate the claim because the statements focused on the evidence and elements necessary to substantiate the claim. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The Veteran avers that he has a current bilateral foot disorder that is the direct result of an accident during active duty service, in which he injured his feet. Specifically, he claims that he was in an accident, in which he fell from a truck and was hanging several minutes by his ankles. Review of the service treatment records shows that in June 1971, he was treated for complaints of a swollen left foot caused by an injury when he jumped from a vehicle the previous day. The clinical evaluation found mild tenderness to the area near the small toe, and the impression was a muscle strain. The Veteran was treated with an ACE bandage and returned to duty. Subsequent service treatment records show no evidence of a chronic foot or ankle disorder, or that the Veteran had any further complaints about his left foot. His March 1972 service separation examination revealed normal findings for the feet and lower extremities, and on the accompanying medical history report, the Veteran answered "no" to the question of whether he then had, or ever previously had foot trouble. Post-service treatment reports of record show that, following service, the Veteran did not seek treatment for a foot disorder until February 2004, when he was seen by private physician, Dr. M.T., with complaints of right foot pain, which he said had been present for "several years." There is nothing in the treatment notes about the Veteran complaining about a continuing left foot problem from military service, and the clinician noted that the Veteran had a history of a right foot bone spur. An examination of the extremities revealed no abnormalities and the Veteran was diagnosed with degenerative joint disease of multiple joints. A follow-up treatment note in December 2004 shows the examiner again noted the Veteran had a past medical history of chronic right foot pain. In July 2005, the Veteran was seen at the Tennessee Valley VA Medical Center (VAMC) for an Agent Orange examination. In the past medical history section of the report, the clinician noted that the Veteran reported having sustained an injury to the left foot and ankle in 1971, which "bothered him for quite a while but eventually cleared up, only to recur in the last few years in terms of chronic foot and ankle pain." On physical examination, the clinician noted that the Veteran walked with an awkward gait, as though he favored his left ankle and/or knee. The assessment was history of old left knee, ankle, foot injury, June 1971, with residual symptoms, and arthralgias, multiple joints, including shoulders, knees, elbows, ankles and feet. In November 2007, the Veteran was seen by private physician, Dr. T.C., for complaints of left foot pain. The doctor noted that the Veteran reported having sustained multiple injuries in Vietnam and needed to have them assessed and documented to determine his current level of disability for VA. Dr. T.C. noted the Veteran's report of having had his left foot caught during service, then hanging from his leg for several minutes before falling on his back. At that time, he noted that the Veteran had experienced "occasional" left leg pain since that time. An examination revealed left lower leg venous stasis dermatitis with hyperpigmentation of the distal half of the lower leg. The left knee and ankle had full range of motion. The diagnosis was "probably left knee arthritis, [and] peripheral neuropathy of the left foot." In December 2007, the Veteran returned to Dr. T.C. with complaints of left knee pain. The Veteran reported that, since his injury in service, he had experienced "occasional" left leg pain predominately in the left knee, with the pain becoming worse over the last several years. He also reported having trouble sleeping due to left knee pain. An MRI revealed degenerative joint disease of the left knee and a possible subtle tear or intrameniscal cyst medial meniscus. Dr. T.C. said the Veteran "may" have a meniscal tear consistent with a previous injury along with being partially disabling. He added that the Veteran had continued knee pain, which had worsened over the last several years due to time and his obesity. He also noted that the Veteran complained of left foot numbness, but noted that nerve conduction velocities were negative and no definite etiology had been found for this. The physician diagnosed the Veteran with calcaneal spurs, found on x-ray, which he said caused foot pain on the plantar fasciitis and opined were directly related to the Veteran's military service. In October 2009, the Veteran was afforded a VA compensation and pension feet examination, at which time, he complained of bilateral foot numbness, worse on the left. On examination, there was no evidence of fracture or dislocation of the feet, painful motion, instability, weakness or abnormal weight-bearing. There was, however, swelling and tenderness of the feet bilaterally. He also had mild flexible claw toes and hemosiderin deposits. The bilateral ankles were noted as normal and the Veteran's gait was normal and non-antalgic. X-rays revealed bilateral heel spurs. The diagnosis was foot pain. Although the examiner failed to provide an opinion concerning whether the Veteran's heel spurs were related to service, in a subsequent March 2010 addendum, another examiner reviewed the claims folder and opined that the Veteran's disorder was less likely than not permanently aggravated by his in-service injury to his left foot and ankle. In this respect, she noted that the Veteran said that his pain had fully resolved following the injury, and at the time of his service separation examination, he said that he had no foot trouble. She noted that, clinically, his symptoms of bilateral neuropathy were more consistent with lower lumbar disease than a foot and ankle injury. As discussed above, because the October 2009 and March 2010 examination reports were deemed inadequate for rating purposes, the Veteran was afforded another examination in October 2010 in order to obtain an opinion as to whether his calcaneal spurs were related to his 1971 in-service injury. The VA examiner, however, did not respond to that question, and instead, diagnosed the Veteran with degenerative arthritis of the bilateral knees and arthralgias of the bilateral ankles, both of which he found to be less likely than not related to service. Although he also diagnosed bilateral plantar calcaneal spurs, he did not opine as to an etiology. Instead, he noted that the present arthritis and arthralgias were not consistent with any significant injury to any of those joints as reported in 1971. Instead, he said that the mild knee radiographic findings were completely consistent with the normal aging process and that a significant injury to either knee in service would be expected to present with much more advanced degenerative joint disease at that time, more than 35 years after service. In August 2012, the Veteran's wife contacted the VAMC with reports that the Veteran began noticing swelling and tenderness of the feet since the previous week. The Veteran was advised to go to the emergency room for treatment of possible deep vein thrombosis. Although it is unclear whether he actually went to the emergency room, the Veteran was seen a few days later at the VAMC, where an examination revealed chronic, mild edema of the bilateral lower extremities with a brawny discoloration that had been present for several years. At this time, the Veteran said that his bilateral foot pain started after a change in his work assignment. In September 2012, the Veteran's wife called the VAMC again and reported that his left leg continued to be even more swollen than before. When he returned to the clinic, he reported that he worked a great deal while standing on his feet and said that his swelling was worse at the end of the day. In December 2012, the Veteran's file was reviewed by another VA examiner, who noted that his review included that complete claims folder, including the previous VA examination reports and the Veteran's private physician records, including the December 2007 statement from Dr. T.C., who opined that the Veteran's calcaneal spurs were directly related to his military service. The VA examiner concluded that it is less likely than not that the Veteran's bilateral calcaneal spurs are causally related to his 1971 in-service injury. In this respect, he explained that the Veteran's injury from falling from a truck bed and hanging by his ankles would in no way cause calcaneal spurs. Rather, he noted that the condition is the result of chronic, repeated stresses causing microscopic tendon injury with the deposit of calcium during healing. He noted that, over the years, these calcium deposits elongate and appear on x-rays, and said that they are not caused by one single event. Moreover, he noted that the Veteran's injury did not involve the plantary area of both feet. With regard to the opinion of Dr. T.C., the examiner said that he had failed to provide any rationale as to why he believed the Veteran's spurs would be related to his military injury. The examiner also observed that the Veteran worked on his feet and was morbidly obese, which he said provided a much more likely cause of his calcaneal spurs. Although he found the Veteran's reports of foot pain to be credible, he found such statements could not be relied upon for a diagnosis of the cause of the pain. III. Conclusion It is the responsibility of the Board to weigh the evidence, including the medical evidence, to determine where to give credit and where to withhold the same, and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Based on a review of the complete evidence of record, including the Veteran's personal statements, the Board concludes that the competent and probative evidence is against the Veteran's claim of entitlement to service connection for a bilateral foot disorder. In this regard, the Board again notes that a competent VA examiner, after reviewing the complete claims folder, including previous examination reports and private treatment records, concluded that it was less likely than not that his current foot disorders are the result of active duty service. Notably, the examiner considered the Veteran's self-reported history of having injured his feet in service, as well as the treatment he received therein, to be credible. Moreover, as discussed above, there is no probative evidence showing that the Veteran was treated for a foot disorder until more than 30 years after service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a foot disorder is evidence that weighs against the Veteran's claim on a direct basis. Moreover, as there is no probative evidence showing that the Veteran developed arthritis of the feet within one year of separation from service, service connection on a presumptive basis is also not for application. The Court has held that whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court had further held that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, despite Dr. T.C.'s opinion that the Veteran's bilateral calcaneal spurs are causally related to his 1971 injury in service, he failed to provide any basis for his conclusion. Instead, he noted that the Veteran was being seen in order to determine his disability level for VA purposes. Conversely, the VA examiner not only provided a well-reasoned rationale for his opinion that it is less likely than not that the Veteran's disorder is related to service, but he also explained how calcaneal spurs form. As such, the Board finds the most probative evidence to be the opinion of the December 2012 examiner, and accords little probative weight to the opinion of Dr. T.C. In addition to the medical evidence, the Board has also considered the Veteran's personal statements and testimony in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As foot pain is something the Veteran, as a layperson, is competent to report, his assertions concerning chronic pain since service are entitled to some probative weight (although, the Board notes that, Dr. T.C.'s treatment reports also show that he only reported "occasional" pain). However, although the Veteran is competent to report his symptoms, he is not necessarily competent to attribute those symptoms to a specific underlying disease or injury during service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (holding that, where there is assertion of continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition"), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). Additionally, in Clyburn v. West, 12 Vet. App. 296, 301 (1999), the Court held that continued complaints of pain after service do not suffice to establish a medical nexus where the issue at hand concerns etiology, and requires a medical opinion. In this case, the fact remains that the only probative medical opinions of record fail to relate the Veteran's current foot disorder to military service. The Board finds the opinion of the 2012 VA examiner to be the most probative evidence of record as to the relationship between the Veteran's current disabilities and service, and ultimately outweighs Dr. T.C.'s cursory statement, as well as the Veteran's complaints of continuing foot pain after service. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for a bilateral foot disorder. In arriving at the decision to deny the claim, the Board has considered the (Continued on the next page) applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of probative evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a bilateral foot disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs