Citation Nr: 1324733 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-49 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for disability of the left foot. 2. Entitlement to service connection for disability of the right foot. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to June 1985, to include service in Southwest Asia from December 1990 to March 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the claims files was subsequently returned to the Winston-Salem, North Carolina, RO. When the case was most recently before the Board in May 2013, it was remanded for additional development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. No disability of either foot was present until more than one year following the Veteran's discharge from service. 2. The Veteran's current bilateral foot disability degenerative joint disease of the first metatarsophalangeal joint, is not etiologically related to his active service. CONCLUSIONS OF LAW 1. A disability of the right foot was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). 2. A disability of the left foot was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The statute and regulation 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, if any, 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 United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in September 2008, prior to the initial adjudication of the claims. In addition, service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. In addition, an appropriate VA examination was provided and an appropriate VA medical opinion was obtained in response to the claims. The examination and opinion are in compliance with the Board's remand directives. Neither the Veteran nor his representative has identified any outstanding additional evidence that could be obtained to substantiate either claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of these claims. Legal Criteria Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness and (2) a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a)(2). In addition, service connection may be presumed for certain infectious diseases even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.317(c). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The evidence does not show and the Veteran does not appear to be contending that he had a disability of either foot during active service or until years thereafter. Moreover, the Veteran has not contended that his foot problems are due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and the medical evidence shows that his foot problems have been attributed to a known clinical diagnosis, degenerative joint disease of the first metatarsophalangeal joint of each foot. The Veteran appears to be claiming that his bilateral foot disability is due to the rigors of his active service. The Veteran was afforded a VA examination in December 2012. In addition to examining the Veteran, the examiner reviewed the Veteran's pertinent records. At the examination, the Veteran reported a history of painful feet for the past 8 or 9 years. He denied any history of foot injury. The examiner diagnosed degenerative joint disease of the first metatarsophalangeal joint, bilaterally, and then offered an ambiguous nexus opinion, finding any relationship to active service both likely and unlikely. In May 2013, the Board remanded the case for a clarifying opinion by the December 2012 VA examiner. In a June 2013 addendum, the December 2012 VA examiner opined that there is less than a 50 percent probability that the Veteran's bilateral foot disability is related to his active service. The rationale was that the Veteran denied seeking any treatment for a foot disorder during active service and that he reported that foot pain first arose 8 or 9 years ago, which is about 8 years after his release from active service. The examiner found the Veteran's self-reported medical history to be credible. The Board has found the June 2013 VA medical opinion to be very probative because it is based upon a review of the Veteran's pertinent history and the examination of the Veteran and is properly supported. There is no contrary medical opinion of record. The evidence of a nexus between the Veteran's current bilateral foot disability and his active service consists solely of the Veteran's own statements. There is nothing in the record suggesting that the Veteran has the expertise required to provide a competent opinion concerning the etiology of the arthritis in his feet. Therefore, the Board must conclude that the Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's bilateral foot disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for disability of the right foot is denied. Service connection for disability of the left foot is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs