Citation Nr: 1324394 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-27 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral foot disorder, to include bilateral flat feet. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M.G. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1953 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board remanded the case for additional development in March 2013. 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). FINDING OF FACT A bilateral foot disorder, to include bilateral flat feet, was not manifest during active service, arthritis of the feet was not manifest to a degree of 10 percent or more within a year of the Veteran's separation from service, and a present bilateral foot disorder is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW A bilateral foot disorder, to include bilateral flat feet, was not incurred in or aggravated by military service nor may arthritis of the feet be presumed to have been so incurred or aggravated. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in May 2008. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes a copy of the Veteran's December 1954 separation examination report, VA treatment and examination reports, private treatment records, a lay statement from J.D.R. dated in August 2007, and the Veteran's statements and testimony in support of his claim. The record also shows the Veteran's additional service treatment and personnel records are unavailable and that they may have been lost due to fire at a government storage facility. In such cases, there is a heightened duty to assist him in developing the evidence that might support his claim, which includes the duty to search for alternative medical records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In correspondence dated in May 2008, VA notified the Veteran that the service department had been unable to locate his records and he was advised to provide records in his possession or to provide information for VA assistance in searching alternative sources for evidence to substantiate his claim. The Veteran reported he had no combat service and in statements and testimony during the appeal reported that he could not recall having received treatment for a foot disorder during active service. He stated he had not sought treatment in service because he feared he would receive unpleasant duties if he reported to sick call. In correspondence dated in May 2013, VA notified the Veteran that efforts to obtained private treatment records from R.D.B., D.P.M., had been unsuccessful and he was advised to provide any records in his possession. In correspondence dated in June 2013 the Veteran reported that he had been informed that records of his treatment with F.T., D.P.M., were unavailable and that he had no other evidence to submit in support of his appeal. The development requested on remand in March 2013 has been substantially completed. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The April 2013 VA medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). These presumptions are rebuttable by affirmative evidence to the contrary. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record includes a December 1954 separation examination report which noted a normal clinical evaluation of the feet. The examiner provided no notes or comments as to any significant or interval history. A physical profile (PULHES) of 111111 was provided. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."). In statements and testimony in support of his claim the Veteran asserted that he has present foot disabilities as a result of an injury he sustained in a forced march during basic training in approximately June 1953. He reported he experienced foot problems during active service, but indicated that he did not seek medical treatment because he feared there would be adverse consequences if he reported to sick call. He testified that he continued to have problems with his feet after active service, but that his treatment records and the medical records associated with his post-service employment in the years immediately after service were unavailable. A fellow serviceman, J.D.R., provided a statement in August 2007 in support of the Veteran's claim and recalled that his feet had gone out from underneath him during a forced march in training. It was further noted that he had been later provided a diagnosis of fallen aches; however, no information was provided as to when that diagnosis had been provided nor as to how J.D.R. knew of the diagnosis. VA treatment records dated in December 2002 noted the Veteran had been referred for aquatherapy for relief of pain related to arthritis. It was noted he expressed having much pain, including to the feet. X-ray studies in August 2004 revealed moderately advanced arthritic changes. A bone scan in September 2004 revealed abnormalities to the left and right midfoot indicative of degenerative arthritic changes. A May 2008 report noted the Veteran reported that his feet "broke down" in basic training. A November 2009 private treatment report noted the Veteran stated he thought his arches had collapsed after a forced march during service, but that he did not complain about the pain because he feared he would be punished with some unappealing duties. It was also noted that he reported that he began to have pain in the feet and ankle approximately five to six years earlier. In a December 2009 report K.S.B., M.D., noted that a magnetic resonance imaging (MRI) scan of the left foot and ankle revealed significant osteoarthritic changes with cyst formation and joint destruction. X-ray studies of the left foot showed a Charcot-like foot. The physician stated that the osteoarthritic changes were likely related to what happened to him during service many years ago. It was noted "[h]e entered the service with normal feet and when he left he had flat feet." No information, however, was provided as to how it had been determined that he had flat feet when he left service. At his April 2013 VA examination the Veteran reported that during a forced march in training with full gear his arches fell and that he had experienced trouble with his feet since that time. He stated he could not recall seeking care in service and that his private medical care provider had instructed him to buy over-the-counter supports and special shoes. He reported he had no medical records documenting this treatment and that this private medical care provider was deceased. It was noted that he reported that when he was working he took a lot of Tylenol and Advil for foot pain. He stated he had experienced a lot of pain in his feet after being on them for several hours and that he had last worked as an industrial spray painter in 1998. The examiner provided diagnoses of bilateral pes planus and severe degenerative arthritis of the feet and noted the claims file had been reviewed. X-ray examination reports were included which revealed joint destruction, degenerative arthritis, and findings consistent with neuropathic foot. It was the examiner's opinion that it was less likely than not the Veteran's bilateral foot disorders were incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion it was noted that the Veteran claimed to have sustained bilateral foot injuries during basic training and that a buddy statement indicated his feet went out from underneath him during a forced march. The buddy statement it was noted also reported the Veteran was later diagnosed with fallen arches, but that it did not state when or how that diagnosis occurred. The examiner noted that upon separation examination the Veteran's feet were normal and that there were no medical records indicating a foot condition until August 2002. Based upon the evidence of record, the Board finds that a bilateral foot disorder, to include bilateral flat feet, was not manifest during active service, that arthritis of the feet was not manifest to a degree of 10 percent or more within a year of the Veteran's separation from service, and that a present bilateral foot disorder is not shown to have developed as a result of an established event, injury, or disease during active service. The April 2013 VA examiner's opinion is found to be persuasive and based upon adequate rationale. The opinion is shown to have been based upon a thorough examination and a thorough review of the competent and credible evidence of record. Although statements provided by the Veteran and J.D.R. are considered to be credible to the extent that they indicate the Veteran sustained injuries to his feet during basic training, they are not competent to provide opinions as to etiology for subsequently provided diagnoses. While lay persons are considered competent to provide evidence as to observations and some medical matters, these statements are, at most, conclusory assertions of a nexus between a present diagnosis and service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. In fact, the overall evidence of record demonstrates that the Veteran does not contend, or was unable to recall, that he actually received a diagnosis of flat feet or pes planus during active service. As questions of a present medical diagnosis and any relationship to service are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). To the extent the statements provided by the Veteran and J.D.R. may be construed as indicating that after his injuries during training his feet appeared to be flat and painful, the Board further finds this evidence to be not credible. These statements are inconsistent with the findings reported upon the Veteran's separation examination in December 1954 and the absence of any significant history having been reported at that time. The Board acknowledges the Veteran's claim that he did not seek treatment during service because he feared he would receive unpleasant duties, but that this is not found to be a credible explanation for why he did not report having had continuing pain in the feet to the examiner two days before he left service. In determining whether evidence is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). The lay statements as to a chronic disorder having been manifest in service and as to etiology opinions for any subsequently manifest chronic disorders are found to have no probative value. Additionally, evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Additionally, a "[Doctors'] diagnoses can be no better than the facts alleged by appellant." Swann v. Brown, 5 Vet. App. 229, 233 (1993). Although the December 2009 opinion of Dr. K.S.B. found the Veteran's osteoarthritic changes were likely related to what happened to him during service, it was also noted that the opinion was based upon his history of having entered service with normal feet and having had flat feet when he left service. As this history appears to have been provided solely upon the Veteran's report as to having had flat feet at separation that is found to be not credible, the Board finds the opinion of Dr. K.S.B. to have no probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds the preponderance of the evidence is against the Veteran's claim for entitlement to service connection. Therefore, the appeal must be denied. ORDER Entitlement to service connection for a bilateral foot disorder, to include bilateral flat feet, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs