Citation Nr: 1323618 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-22 001 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for left elbow tendonitis/cellulitis. 2. Entitlement to service connection for right elbow tendonitis/cellulitis. 3. Entitlement to service connection for a stress fracture of the right foot and/or residuals thereof other than arthritis of the right first metatarsophalangeal joint and hallux valgus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2010. A transcript of the hearing is included in the claims folder. The instant matters were previously before the Board in February and December 2012, at which time they were remanded for further development. Concerning the claim of service connection for a stress fracture of the right foot, the Veteran was afforded a VA examination in February 2013. The examiner was requested to identify all current right foot disabilities and provide an opinion as to whether any currently diagnosed right foot disability was at least as likely as not related to the Veteran's period of military service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim). Upon examination of the Veteran, the examiner diagnosed osteoarthritis and a bunion deformity of the right first metatarsophalangeal joint, likely related to the Veteran's "long standing condition that began while in service." In March 2013, the Appeals Management Center (AMC) awarded service connection for arthritis of the "right first metacarpal," and right hallux valgus. That same month, the AMC issued a supplemental statement of the case (SSOC) wherein it denied service connection for a stress fracture of the right foot upon finding that the Veteran did not have a currently diagnosed stress fracture of the right foot, and the matter was returned to the Board in May 2013. (Although the AMC characterized the service-connected arthritis as affecting the "metacarpal," it is clear from the context of the AMC's decision and the examiner's assessment that what was meant was arthritis of the right first metatarsophalangeal joint. Consequently, the Board finds that the grant was for the right first metatarsophalangeal joint, not for any metacarpal joint.) To date, it does not appear that the Veteran has disagreed with any aspect of the AMC's decision granting service connection for arthritis of the first metatarsophalangeal joint and hallux valgus. Accordingly, those matters are not presently before the Board. However, given the AMC's separate adjudication of the claim of service connection for a right foot stress fracture via the March 2013 SSOC and recertification of that issue to the Board, the Board finds that the issue of entitlement to service connection for a stress fracture or residuals thereof other than what has already been service connected remains before the Board. (The decision below addresses the Veteran's claim of service connection for a stress fracture of the right foot. The Veteran's remaining claims are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran does not currently have a stress fracture of the right foot. 2. The Veteran does not have a currently diagnosed right foot disability other than arthritis of the metatarsophalangeal joint and hallux valgus related to an in-service event or injury. CONCLUSION OF LAW The Veteran does not have a right foot disability, other than arthritis of the metatarsophalangeal joint and hallux valgus, that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's service connection claim in September 2008. That same month, the RO sent to him a letter notifying him of the evidence required to substantiate his claim. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as the dates of medical treatment during service, evidence of medical treatment since service, employment physical examination reports, insurance examination reports, and statements by persons who knew of the Veteran's disability. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the September 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim of service connection. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), private treatment records, VA examination reports, records from Madigan Army Medical Center, and the Veteran's lay statements, to include his December 2010 hearing testimony. The Veteran was also afforded a VA examination in February 2013 in connection with his claim of service connection for a right foot disability. The examiner reviewed the claims folder, took a detailed history from the Veteran, conducted a physical examination of the Veteran's right foot, and obtained x-rays. The examiner set forth all diagnosable right foot disabilities and provided the requested etiology opinions. The Board finds that the examination report contains sufficient evidence by which to evaluate the Veteran's service connection claim decided herein and the Board finds that the examiner's opinion is supported by an adequate rationale. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that he has a right foot disability as a result of his military service. Specifically, he states that while in service, he sustained a stress fracture in his right foot and has experienced continuous right foot pain since that time. A review of the Veteran's STRs shows complaints of bilateral foot pain and a March 1999 treatment record reveals that the Veteran presented with complaints of pain in the plantar section of both feet. The Veteran stated that the pain had begun 14 months earlier and had gradually increased in severity since that time. That same month, the Veteran underwent a bone scan from the pelvis to the feet and spot images of the legs and feet were done. The impression was scattered uptake in the feet, both compatible with overuse, and bilateral calcaneal uptake, compatible with repetitive trauma. The Veteran was afforded a VA examination in February 2013. The examiner noted that Veteran's complaints of foot pain since service. X-rays taken as part of that examination revealed no evidence of fracture or dislocation, but did show osteoarthritis of the first metatarsophalangeal joint and hallicus valgus. The examiner opined that the Veteran's diagnosed osteoarthritis and bunion were likely related to the numerous long road marches required in service. The examiner further indicated that the Veteran's complained-of right foot pain was related to the presence of his bunion. As noted in the introduction, the Veteran has been awarded service connection for arthritis of the right metatarsophalangeal joint and right hallux valgus based upon the February 2013 VA examiner's finding that the Veteran had arthritis and a bunion deformity of the right first metatarsophalangeal joint likely related to his "long standing condition that began while in service." A review of the February 2013 VA examination report fails to reveal any other diagnosed disability of the right foot that has been linked to service. There is no evidence of a current right foot stress fracture. Further, the Veteran's complained-of right foot pain has been attributed to the presence of his now service-connected disorder. Upon review of the evidence, the Board finds that the Veteran does not have a diagnosed right foot disability other than what has already been service connected. The results of the February 2013 VA examination, to include x-ray findings, failed to indicate a current right foot stress fracture or any residual thereof, other than the service-connected arthritis and hallux valgus. Accordingly, without evidence of a currently diagnosed right foot disability for which service connection has not already been established, the Board finds that the claim of service connection for a stress fracture of the right foot and/or residuals thereof, other than arthritis of the right first metatarsophalangeal joint and right hallux valgus must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a stress fracture of the right foot and/or residuals thereof other than arthritis of the right first metatarsophalangeal joint and right hallux valgus is denied. REMAND As to the Veteran's claims of service connection for left and right elbow disabilities, the Veteran has stated his belief that his current elbow symptomatology is related to service because while in service, he was often required to lean on his elbows, which are abnormally pointy and sensitive. The Veteran has also indicated his belief that exposure to poison ivy in service precipitated his elbow cellulitis and bursitis. Evidence relevant to the Veteran's claims of service connection for left and right elbow disabilities show treatment in service related to right elbow pain. The assessment was bursitis with secondary cellulitis. Post-service private treatment records from SSC Family Practice dated in January and February 2009 show that the Veteran presented with an upper extremity injury. He complained of sharp, moderate pain in his elbows. Previous treatment was not indicated. The physician stated that he had reviewed the Veteran's history from November 29, 2007, at which time he had apparently been diagnosed as having bilateral elbow bursitis, and that no changes were required. Upon examination of the Veteran, however, the clinician recorded only an impression of bilateral elbow pain, but indicated that x-rays would be ordered. The report of a February 2009 follow-up visit also contained an impression of bilateral elbow pain; it is unclear whether x-rays were ever taken or reviewed. The report of a September 2010 VA examination contains a diagnosis of right elbow strain. The examiner opined against a nexus to service. However, as discussed in an earlier remand, the opinion report contained several inadequacies, making it of limited probative value. The Veteran was afforded another VA examination in February 2013, the report of which listed diagnoses of bilateral elbow bursitis (now resolved) and bilateral triceps tendonitis with calcifications at insertion. Regarding the diagnosis of bursitis, the examiner indicated the date of diagnosis to be 2009. The examiner then stated that the Veteran's left triceps tendonitis was the result of forceful strain to the triceps tendon and would not evolve from an infection or from leaning on his elbows, as described. The examiner then listed several potential causes of calcification of the triceps tendon. Upon review of this evidence, the Board finds that it is unclear whether the Veteran had bursitis at any point during the claims period, or whether his bursitis resolved prior to the filing of his claim in September 2008. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a "current disability" includes a disability present at the time of filing or during the pendency of a claim). Further, the February 2013 VA examiner did not provide an opinion regarding the Veteran's right elbow disability, nor discuss the Veteran's complaints of continuous elbow pain since service. Accordingly, the Veteran's claims of service connection for left and right elbow disabilities must again be remanded for the agency of original jurisdiction (AOJ) to obtain from the examiner who provided the February 2013 VA examination and opinion report an addendum that further discusses the evidence of record and provides answers to the questions set forth below. The Board notes that in a previous remand, the AOJ was directed to obtain copies of the November 2007 records referred to in the January and February 2009 treatment notes. In February 2012, the Veteran was a sent a letter wherein he was requested to provide certain information and to sign the necessary authorization for release of such private medical records to VA. The Veteran did not respond to that letter. However, given that the matters are again being remanded and information contained in those records is potentially relevant to the current claims, another attempt should be made to obtain the November 2007 treatment records and/or January or February 2009 x-ray reports. The Veteran is reminded that "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and it is he who is ultimately responsible for submitting any private evidence. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should specifically request from the Veteran that he provide the full name and address for the private physician or facility from which he reportedly received treatment in November 2007. Following receipt of that information, the AOJ should contact the physician or facility in question, with a request that copies of any and all records of treatment or examination of the Veteran on file be provided to the AOJ. The AOJ should also contact SSC Family Practice with a request that copies of any and all records of treatment or examination of the Veteran on file, to specifically include the reports of any x-rays and copies of any records reviewed in conjunction with treatment of the Veteran, be provided to the AOJ. The Veteran should be requested to sign the necessary authorizations for release of such private medical records to VA. 2. After the development ordered in paragraph 1 above is completed and any records received have been associated with the claims folder, the claims folder, and a copy of this remand, must be provided to and reviewed by the VA clinician who conducted the February 2013 elbow examination for an addendum that answers the following questions: a. Does the evidence of record support a finding that the Veteran has at any point since September 2008 had bursitis of the left or right elbow? The examiner should set forth in detail the evidence relied upon to form his/her opinion in this regard and state why this evidence does or does not support such a finding. In this regard, the examiner should discuss the significance of the January and February 2009 private treatment records noting an impression of bilateral elbow pain, but indicated that no change was warranted from November 2007, at which time the Veteran was apparently diagnosed as having bilateral elbow bursitis. The examiner should also consider the earlier statement that the Veteran was diagnosed as having bursitis in 2009, which bursitis has since resolved. b. If bursitis of either elbow has been present as any point since September 2008, is it at least as likely as not that the left and/or right elbow bursitis is related to the Veteran's period of military service, to include the bursitis noted in service? The examiner should discuss the Veteran's complaints of elbow pain since service and state why this evidence does or does not support such a finding. c. Is it at least as likely as not the Veteran's right elbow strain, diagnosed on examination in September 2010, is related to his period of military service? d. Is it at least as likely as not the Veteran's right triceps tendonitis with calcifications at insertion is related to his period of military service? Regardless of whether any opinion as to any question is favorable or negative, the examiner must provide support for his opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. The examiner should set forth in detail the evidence relied upon to form his opinions and state why this evidence does or does not support a finding of service connection. If it is determined that an opinion as to any issue at hand cannot be provided without resorting to speculation, the examiner should explain the inability to provide that opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) (If the requested examiner is no longer available, the claims folder should be forwarded to another VA clinician to answer the questions set forth above. If additional evidentiary development is suggested or if another examination is required to formulate an opinion by any examiner, the AOJ should ensure that any additional development is undertaken in order to obtain a definite opinion on each of the questions posed above.) 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues remaining on appeal. If a benefit sought is not granted, the appellant should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board. Thereafter, the case should be returned to the Board for further appellate review. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs