Citation Nr: 1323197 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-10 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to January 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board, in pertinent part, denied the Veteran's claim for service connection for a bilateral foot disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's January 2012 decision with respect to the denial of service connection for a bilateral foot disability, and remanded the matter for compliance with the terms of the Joint Motion. In January and May 2013, the Board remanded the matter for additional development. FINDINGS OF FACT 1. The Veteran has been diagnosed to have hallux valgus, hammer toes, degenerative changes in his feet and bilateral foot calluses. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran has bilateral foot calluses that at least as likely as not had onset in service. CONCLUSION OF LAW Bilateral foot calluses were incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for bilateral foot calluses. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the outset, the Board notes that this case involves the situation where the Veteran's service treatment records have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (holding that when service treatment records are presumed destroyed, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule is heightened); see also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran contends that he has a bilateral foot disability that is related to his service. He specifically alleges that his bilateral foot pain from calluses began during service due to his duties during service and the footwear he was provided. The Veteran's available service treatment records consist of a June 1969 service induction examination report that found the Veteran's feet were normal on clinical evaluation, and a January 1971 statement of medical condition wherein the Veteran indicated there had been no change in his medical condition since his separation examination that was more than three working days prior to his separation from service. Postservice VA treatment records include an October 2002 report noting the Veteran's complaint of foot pain. A December 2005 podiatry consult report noted the Veteran's report that he has had corns and calluses since wearing boots during active service, and that he has trimmed them himself in the past. Physical examination revealed plantar hyperkeratotic lesions, bilateral hallux valgus, bilateral tailor's bunions, bilateral hammer toes 2nd to 5th toes, plantar tylomas (i.e., calluses) 1st and 5th toes bilaterally, and a distal lesion on the 4th toe on the right foot. The plan was debridement of all lesions, and he was ordered dermatology lotion for his heels. A February 2006 podiatry report related findings consistent with the above-mentioned December 2005 podiatry consult report. February 2006 x-rays of the feet revealed minimal degenerative change with no acute abnormality. In March 2006, the Veteran filed the instant claim for service connection for a bilateral foot disability, stating that the condition started while on active duty and has gotten much worse since his separation from service. VA treatment records after March 2006 show continuous treatment for his feet, particularly trimming of the calluses on his feet, and also contain his complaints of having the calluses since service. In January 2013, the Board remanded this matter to afford the Veteran a VA examination to determine the nature and likely etiology of the claimed bilateral foot disability. On February 2013 VA examination, the Veteran reported the onset of his bilateral foot pain from calluses due to duties of service and his footwear. He denied seeking treatment for the condition in service, but related that his symptoms have progressed since service. On physical examination, he had calluses over both feet over the plantar surfaces located over the heels, and also over the 1st and 5th metatarsal heads, and also over the 4th and 5th toes, bilaterally. The diagnosis was plantar calluses. Notably, the Veteran's claims file was unavailable for review. The examiner opined that he was unable to render an opinion as to the etiology of the Veteran's calluses due to the claims file not being available. In an April 2013 VA examination addendum report, after review of the Veteran's claims file, the examiner noted that he was unable to identify a separation examination in the service treatment records. Consequently, he would have to resort to speculation to opine on the date of origination of the Veteran's ongoing plantar calluses. In May 2013, the Board again remanded this matter, in part because the February 2013 VA examination report found the Veteran did not have any other foot disability nor been diagnosed with any other foot disability, which based on the evidence above, appears incorrect. Hence, the Board found that another VA examination was necessary to determine the nature and likely etiology of his claimed bilateral foot disability. On June 2013 VA examination, the examiner diagnosed the Veteran with bilateral hallux valgus, calluses and hammer toes. It was noted that the hammer toes and hallux valgus were asymptomatic, and that the calluses were symptomatic of both feet. On physical examination, the hammer toes were located on the 2nd, 3rd, 4th and little toes of the right foot, and the 4th and little toes of the left foot. There were numerous calluses present on the bottom of his feet on bilateral heels, 1st and 5th metatarsal heads, and 4th and 5th toes. After review of the Veteran's claims file, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner further explained that the bilateral hallux valgus and hammer toes result from the use of poorly fitting shoes over a long period of time. Significantly, his active service would not be adequate to result in hallux valgus or hammer toes, and the problems were not identified until 2005, about 35 years after his military service. It was also noted that the numerous calluses were diagnosed in 2005, but given the lack of a separation examination, she could not say with certainty if the calluses were present at that time. Based on the evidence of record, the Board finds that a current bilateral foot disability has been established. The record shows the Veteran has been diagnosed with bilateral calluses, hammer toes, hallux valgus, and degenerative changes. The Board also notes that the Veteran claims that his bilateral calluses began during service due to his duties during service and the footwear he was provided. The Board finds that the Veteran is both competent and credible to report on what he can see and feel even if a specific injury is not documented in his service treatment records. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). In this regard, the Board finds that it may not reject the credibility of the Veteran's lay statements regarding the onset of his in-service symptomatology simply because it is not corroborated by contemporaneous medical records, particularly as the Veteran's service treatment records are largely unavailable for review. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (finding that a lay person is competent to identify veins that are unnaturally distended or abnormally swollen and tortuous). After a review of the evidence of record, the Board finds competent and credible the Veteran's account his bilateral foot calluses began during service and have continued since because (1) he has provided a generally consistent account of the onset of his calluses, as reflected in VA treatment records, and (2) his account is not inconsistent with the medical evidence of record. The Board finds significant that while there are no contemporaneous records showing complaints for calluses in the evidence of record, the Veteran has reported that he used to treat them himself. The Board has no reason to question the authenticity of the Veteran's accounts, and therefore finds them credible, thereby accounting for the lack of contemporaneous evidence with his separation from service. Moreover, the VA examinations of record have not been able to provide an opinion as to the etiology of the Veteran's calluses due to the lack of a separation examination report, and are therefore unable to refute the Veteran's competent and credible account as to the onset of his bilateral foot calluses. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for calluses of the Veteran's feet. After considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran's bilateral foot calluses had their onset during his active service. Bilateral foot calluses were incurred in active service, warranting service connection. The benefit of the doubt rule (38 U.S.C.A. § 5107(b)) has been considered in making this decision. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Regarding the Veteran's diagnosed bilateral hallux valgus, hammer toes and degenerative changes, the Board finds that service connection is not warranted. There is no evidence that the Veteran has contended that these disabilities began during service or within one year after his separation from service. Consequently, service connection for bilateral hallux valgus, hammer toes, and degenerative changes, on the basis that such disabilities became manifest in service and persisted, is not warranted. As to whether the bilateral hallux valgus, hammer toes, and degenerative changes are somehow otherwise shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter consists of the report of the June 2013 VA examination. The Board finds that the June 2013 VA examination to be entitled to great probative weight, as the examiner reviewed the Veteran's entire medical history, interviewed the Veteran, and explained in full the rationale for the conclusions reached, citing to the length of the Veteran's service being insufficient to result in hallux valgus or hammer toes, and the lengthy intervening period between the Veteran's service and the initial diagnoses for these disabilities. Because there is no competent evidence to the contrary, the Board finds the VA examiner's opinion to be persuasive. In addition, the Veteran has not submitted any supporting medical evidence to support a nexus, such as a medical nexus opinion or citation to supporting textual evidence. Notably, there is no competent evidence relating the Veteran's degenerative changes of his feet to his active service, and the Veteran has not specifically alleged that such is related to his active service. In this case, the most probative evidence is against a finding that the Veteran's bilateral hallux valgus, hammer toes, and degenerative changes are related to service. Accordingly, a claim for service connection for bilateral hallux valgus, hammer toes, and degenerative changes is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a claim for service connection for bilateral hallux valgus, hammer toes and degenerative changes, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a bilateral foot calluses is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs