Citation Nr: 1322858 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 05-41 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1973. The Veteran also served in the United States Army Reserves from January 1976 to August 1993 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran requested a Travel Board hearing in the November 2005 substantive appeal. He was scheduled for a hearing in September 2009; however, he failed to appear at the hearing. The Veteran did not request to reschedule the hearing or provide the Board with good cause for missing the hearing. Therefore, the request is deemed withdrawn. See 38 C.F.R. § 20.704(d). The Board remanded these matters in February 2010 and July 2012 for further evidentiary development and in April 2013 to send the supplemental statement of the case to the Veteran's current address of record. After completing the foregoing to the extent possible, the Appeals Management Center (AMC) continued the denial of each claim as reflected in the May 2013 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current bilateral foot disability is not etiologically related to active military service. 2. The preponderance of the evidence shows that the Veteran's hypertension did not occur in or is otherwise related to active military service. CONCLUSIONS OF LAW 1. A bilateral foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Hypertension was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, 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 the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a letter dated in February 2010 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claims for hypertension and foot problems. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The duty to notify the Veteran was satisfied after the initial AOJ decision. The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond, but the AOJ readjudicated the case by way of the supplemental statement of the case issued in May 2011 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran will not be prejudiced by the Board proceeding to decide his claims, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service and reserve treatment records, private treatment records, VA treatment records, VA examination reports dated in May 2010 and August 2012 and lay statements from the Veteran. The May 2010 VA examination reports show that the examiner reviewed the Veteran's claims file in addition to obtaining an oral history and providing an evaluation of the Veteran. The examiner provided a diagnosis of the Veteran's claimed conditions. With respect to the etiological opinion of the Veteran's claimed foot disability, the supporting rationale did not address all of the reserve treatment records that discussed the Veteran's complaints of a bilateral foot problem. The opinion addressing whether the Veteran's hypertension was related to the Veteran's active military service used a higher standard of proof than the "benefit of the doubt "standard that is provided in VA laws and regulations for direct service connection claims. Therefore, the Veteran was provided with another VA examination for his service connection claims. The August 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing an evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's current conditions and he provided an explanation for the opinions, which appears to be based on both the medical and lay evidence of record and reflects consideration of medical principles. Accordingly, the Board concludes that the examination is adequate for adjudication purposes. As noted in the Introduction, these issues were previously remanded in February 2010 for proper VCAA notice, to obtain any outstanding Social Security Disability records and to provide the Veteran with a VA examination and opinion. A letter dated in February 2010 satisfied VA's duty to notify the Veteran of how to substantiate his service connection claims. The Appeals Management Center (AMC) contacted the Social Security Administration (SSA) to obtain any outstanding records in February 2010. The SSA responded in February 2010 that there are no medical records in their possession as the Veteran did not file for disability benefits or he filed for disability benefits but no medical records were obtained. The Veteran was provided with a VA examination in May 2010; however, the examiner's opinions and/or explanations in support of the opinions were deemed inadequate. The Board remanded the claims again in July 2012 to obtain any outstanding treatment records identified by the Veteran to include private treatment records from 1993 to 1998 and to provide the Veteran with another VA examination and opinion. A letter dated in July 2012 requested that the Veteran inform VA if he has received any treatment from a VA medical facility and to complete and return the enclosed VA form if he received any private treatment (specifically between 1993 and 1998 for his hypertension) for his claimed disabilities or to provide VA with such private records. The Veteran did not respond to the letter. Thereafter, the Veteran was provided with a VA examination in August 2012. The VA examination report shows that the examiner addressed the questions raised by the Board and it was supported by an explanation. The Board remanded the claim a third time to send the January 2013 supplemental statement of the case to the Veteran's current address of record. The AMC continued the denial of the claims in the May 2013 supplemental statement of the case and it was sent to the Veteran's current address of record. Accordingly, the Board finds that there has been substantial compliance with the February 2010, July 2012 and May 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issues currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claims for Service Connection The Veteran claims that his current foot problems and hypertension had its onset while a member of United States Army Reserves. Specifically, he contends that he injured his feet and his hypertension had its onset during active duty for training (ACDUTRA) while in the United States Army Reserves. Initially, the Board notes that the RO adjudicated the issues of entitlement to service connection for a bilateral foot disability and hypertension as new and material claims. The additional material received by VA included service clinical records that were not associated with the claims file during the original adjudication of the claim. These clinical records document high blood pressure in July 1993 and a July 1991 sick slip note documents that the Veteran had had foot problems in the line of duty. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that existed and had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim, not withstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). As the additional service records associated with the claims file relate to the Veteran's service connection claim for a foot disability and hypertension, they are considered relevant evidence. Thus, the Veteran's original service connection claims will be reconsidered without requiring the submission of new and material evidence. Before turning to the merits of the Veteran's claims, the Board must determine if it would be prejudicial to the Veteran to address the merits of the claim, given that the RO's decision in January 2005 determined that the claim could not be reopened and did not consider the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). While the RO initially did not reopen the claim, the RO explained the denial of the Veteran's claim based on the merits and provided an analysis of the evidence of record in the May 2011 and May 2013 supplemental statement of the cases. Furthermore, the Veteran and his representative have consistently argued the merits of the claims. Accordingly, the Board finds that it would not be prejudicial to the Veteran for the Board to address the merits of his claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral Foot Disability As noted above, in order to grant service connection, the evidence of record must indicate that the Veteran has a current diagnosis of the claimed disability. The medical evidence of record shows that the Veteran was diagnosed with onchomycosis of the bilateral toes, bilateral pes planus and bilateral claw toe in March 2004. A November 2007 VA treatment record also reveals that the Veteran was diagnosed with bilateral metatarsalgia, bilateral fat pad atrophy beneath the metatarsal heads (1-5) and arthritis. Thus, the Veteran has a current diagnosis of the claimed disabilities. With respect to the Veteran's contentions that he incurred a bilateral foot disability during ACDUTRA, the Board observes that the Veteran sought treatment for bilateral metatarsal pain in June 1991. He reported that he had pain for the past three weeks in the soles of his feet. The clinician noted that the Veteran had thick calluses on the soles of both feet. There was a notation that the calluses were removed. A sick slip dated in July 1991 shows that the Veteran feet hurt and the Veteran was placed on a 30 day soft shoe profile. The sick slip also noted that it was in the line of duty. The Veteran also sought treatment for foot pain later in July 1991, but he was not provided with a diagnosis of a disability. The Board recognizes that the Veteran contends that he has had a continuity of symptomatology of foot problems since active military service. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Onychomycosis of the bilateral toes, bilateral pes planus, bilateral claw toe, bilateral metatarsalgia, and bilateral fat pad atrophy are not chronic diseases under section 3.309(a) and therefore, the Veteran may not establish continuity of symptomatology in lieu of medical nexus. The Board observes that the Veteran has also been diagnosed with arthritis of the bilateral feet. Arthritis is recognized as a chronic disease under section 3.309(a). However, the Veteran's service treatment records do not document a diagnosis of arthritis of the feet during active military service to include a period of ACDUTRA. Furthermore, there is no competent medical evidence of record indicating that the Veteran's complaints of foot pain in 1991 is related to the current diagnosis of arthritis of the feet. The Federal Circuit held in Walker that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service. Walker, 708 F.3d at 1339. Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to arthritis of the feet. Based on the foregoing, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current bilateral foot disabilities and his active military service. In this regard, the Veteran was provided with a VA examination in August 2012. After a review of the record and physically evaluating the Veteran, the examiner determined that there is no evidence of a foot condition that was caused by or a result of service. The examiner noted that the Veteran currently denied having any foot pain; however, he does not walk much due to his back and lower extremity degenerative disease. The examiner explained that the Veteran had metatarsal pain and calluses on both soles of the feet in 1991, but there is no evidence of any current calluses or any residual. The Veteran was diagnosed with metatarsalgia in 2007, but there is no evidence of periodic treatment for this condition following service. He has also been diagnosed with onychomycosis and pes planus, which are not mentioned in the service treatment records. The Veteran also has fat pad atrophy, which is not mentioned in the service treatment records and is most likely related to obesity. There is also no evidence of the Veteran having claw toe during service. The examiner also explained that the degenerative changes in the feet are most likely related to normal age progression accelerated by body habitus. The examiner noted that the cyst on the skin of the second digit of the right foot is asymptomatic and does not involve bone. He determined that it is not related to service. The VA opinion in August 2012 is persuasive and probative as the examiner reviewed the record and provided a clear rationale for his opinion based on the credible evidence of record and medical expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board acknowledges that the Veteran provided a lay opinion that his bilateral foot disability is related his active military service. While he is competent to report observable symptoms such as pain in his feet and calluses, determining the etiology of metatarsalgia, flat feet, claw foot and arthritis requires medical expertise. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current foot disabilities and his active military service. Accordingly, the Board finds that the etiology opinion provided by the Veteran is not probative. In conclusion, the probative medical opinion provides evidence against the claim that the Veteran's current bilateral foot disabilities are related to active military service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim and service connection for a bilateral foot disability is not warranted. Hypertension In assessing whether the Veteran is entitled to service connection for hypertension, the evidence must show that the Veteran has a current diagnosis of the claimed disability. VA treatment records reveal that the Veteran has a current diagnosis of hypertension. Accordingly, the Veteran has a current diagnosis of the claimed disability. The Veteran's service treatment records do not show any treatment for or a diagnosis of hypertension while the Veteran was in the reserves to include during ACDUTRA. However, the claims file contains numerous elevated blood pressure readings, which might indicate Stage I hypertension, while the Veteran was in the hospital for chest pain in June 1993 during a period of ACDUTRA. See VA Clinician's Guide, Chapter 7, ¶ 7.12 (June 2002) (indicating that Stage I hypertension is classified as 140 to 159 systolic or 90 to 99 diastolic). The first medical evidence of record that shows a diagnosis of hypertension is a May 1998 VA treatment record. The medical record documents that the Veteran has a history of hypertension; however, there is no indication that the onset of hypertension was during a period of ACDUTRA while the Veteran was in the reserves. With respect to the issue of whether the Veteran's hypertension had its onset during a period of ACDUTRA or is otherwise related to the Veteran's active military service, the record contains a negative medical opinion. The Veteran was provided with a VA examination in August 2012. After reviewing the claims file and examining the Veteran, the examiner determined that the Veteran's hypertension is not caused by or a result of active military service. He explained that the Veteran had isolated elevated blood pressure readings associated with pain while hospitalized during his reserve service. This is a normal physiologic response to pain. The examiner noted that the evidence also refers to a hospital admission in June 2003 (this date appears to be a typographical error and the examiner meant to state June 1993 as that date is consistent with a documented hospital admission during the Veteran's reserve period, as well as, the history reported by the examiner earlier in the examination report) and there is no evidence that the Veteran was diagnosed with hypertension during that admission. The elevated blood pressure readings at that time were associated with pain and possibly anxiety. The examiner noted that most hypertension is essential or primary and the result of increased neural and hormonal activity. This is relatively common and occurs in approximately 30 percent of adults. The Veteran is obese and obesity is associated with an increased prevalence and incidence of hypertension and weight gain appears to be a main determinant of the rise in blood pressure that is commonly seen with aging. The Board finds that this medical opinion is persuasive and probative as the examiner reviewed the record and provided a clear explanation for his opinion based on the evidence of record and clinical experience. See Nieves-Rodriguez, 22 Vet. App. at 301. The Board recognizes that the Veteran contends that he has had a continuity of symptomatology with respect to his hypertension since active military service. Specifically, he asserts that he had continuous treatment for his hypertension since he was hospitalized for substernal chest pain. Hypertension is listed as a chronic disease under 3.309(a). See Walker, 708 F.3d at 1339. However, the Veteran's service treatment records do not document a diagnosis of hypertension during active military service to include a period of ACDUTRA. Furthermore, there is no competent medical evidence of record indicating that the Veteran's elevated blood pressure readings during the period ACDUTRA in June 1993 is evidence that the Veteran had hypertension at that time. Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to his service connection claim for hypertension. The Board recognizes that the Veteran asserts that his hypertension had its onset during his reserve service or is otherwise related to active military service. Lay persons can provide an account of observable symptoms. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, the diagnosis of hypertension and the etiology thereof requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As the Veteran is not a licensed health care professional, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current hypertension and his military service. In this case, the record does not contain any probative medical evidence or opinion that would indicate the Veteran's current hypertension is related to active military service to include a period of ACDUTRA. As discussed above, the only probative medical evidence of record asserts that the Veteran's hypertension is not related to military service. Thus, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for hypertension and the claim is not warranted. ORDER Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs