Citation Nr: 1325486	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  04-19 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a right lower leg/ankle condition, secondary to a right great toe disability.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served in the Army National Guard from March 1985 to March 1994, and from May 2006 to approximately 2010, which service includes periods of verified active duty for training (ADT).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Waco, Texas.

By way of background, in October 2007 and December 2010, the Board remanded the issue of entitlement to service connection for a right lower leg/ankle disability for further development.  An October 2011 Board decision denied entitlement to service connection on a direct basis, and bifurcated and remanded the newly raised alternate theory of entitlement to service connection as secondary to his service-connected right great toe disability for further development.  In November 2012, the Board again remanded the issue of secondary service connection for further development.  Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review.


FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran has a right lower leg/ankle disability that was caused or aggravated by any service-connected disability.


CONCLUSION OF LAW

Service connection for a right lower leg/ankle disability secondary to a right great toe disability is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim for service connection for a right lower leg/ankle disability secondary to his service-connected right great toe disability, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board finds that VCAA letters dated in October 2003 and March 2009 satisfied the duty to notify provisions in this particular case.  See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012).  The Board acknowledges that a November 2007 VCAA letter was sent to the Veteran's last known address in Plano, Texas, but that it was returned as undeliverable, and that a December 2008 VCAA letter that was sent to an alternate address in Plano after development was performed to locate the Veteran was likewise returned as undeliverable.  Regardless, the October 2003 and March 2009 letters informed the Veteran of what information or evidence was needed to support a claim for service connection, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain.  

The Board acknowledges that the October 2003 and March 2009 notice letters did not address secondary service connection.  In that regard, the Board observes that, although the Supreme Court reversed the presumptive prejudice framework set forth in Sanders, it did not find fault with the analysis for determining whether a VCAA notice error affected the essential fairness of the adjudication.  Accordingly, where there is a defect in the content of VCAA notice, it may be established that such error did not affect the essential fairness of the adjudication by showing that the essential purpose of the notice was not frustrated.  Sanders, 487 F.3d at 889.  Such a showing may be made by demonstrating, for example (1) that the claimant had actual knowledge of what was necessary to substantiate the claim and that the claim was otherwise properly developed, (2) that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim, or (3) that the benefit could not be awarded as a matter of law.  Id.; see also Vazquez-Flores v. Peake, 22 Vet. App. 37, 46 (2008).  Actual knowledge may be established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate his claim.  See Vazquez-Flores, 22 Vet. App. at 48 (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)).  As reversal is warranted only if an error affects the essential fairness of the adjudication, consideration should also be given to whether the post-adjudicatory notice and opportunity to develop the case that was provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim served to render any pre-adjudicatory VCAA notice errors non-prejudicial.  Id. at 46.

In this case, the Board finds that the Veteran, by way of his representative, demonstrated actual knowledge of the elements necessary to establish secondary service connection.  The Veteran's representative asserted in the September 2011 brief that the Veteran had a right lower leg/ankle disability that was caused by his service-connected right great toe disability.  The representative even cited to specific medical literature addressing secondary causation of lower extremity tenosynovitis.  Therefore, the Board finds that any failure by VA to notify the Veteran of the elements of secondary service connection constitutes harmless error and does not prejudice the Veteran.

A March 2006 notice letter explained how VA assigns disability ratings and effective dates.  See Dingess, supra.

The Board also concludes that VA's duty to assist has been satisfied.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file.  The Veteran has not identified any additional relevant treatment records for VA to obtain.  

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of 
(1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4) (2012);  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As noted above, an October 2011 Board decision denied entitlement to service connection on a direct basis, and bifurcated the issue of entitlement to service connection secondary to the Veteran's service-connected right great toe.  The Veteran had been provided with a VA examination in January 2011, but it did not address secondary service connection.  Therefore, the October 2011 Board decision remanded the issue of secondary service connection so that the Veteran could be provided with a new VA examination to address whether he had a right lower leg/ankle disability that was caused or aggravated by his service-connected right great toe.  Pursuant to the Board's remand directive, the Veteran was provided with another VA examination in May 2012, which examination addressed secondary service connection but found no current disability.  In November 2012, the Board again remanded the Veteran's claim for an addendum VA medical opinion from the same examiner to further explain the findings on examination versus the opinion provided that there was no current disability.  Pursuant to the Board's remand directive, a February 2013 VA medical opinion was obtained from the same examiner who provided the May 2012 VA examination.  The February 2013 VA medical opinion addressed all of the questions posed by the Board in its November 2012 remand (e.g., why no current disability was diagnosed).  In light of the above, the Board finds that all of the above VA examinations and the VA medical opinion are adequate upon which to base a decision with regard to the Veteran's claim, and that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The VA examiners had an opportunity to review the entire claims file, to personally elicit a history from the Veteran and examine him.  The examiners also provided clear rationales for their conclusions.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that he has a right leg/ankle disability that is secondary to his service-connected right toe disability.  A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected."  38 C.F.R. § 3.310(a) (2012).  "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence."  38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran's personnel records dated through 2010 in the claims file reflect that he served in the Army National Guard from March 1985 to March 1994, and re-enlisted for a six year term in May 2006, which service including several periods of active duty for training (ADT).

As noted in the introduction above, entitlement to service connection for a right lower leg/ankle disability on a direct basis was separately adjudicated and denied by way of an unappealed October 2011 Board decision.  The Board notes by way of background that the Veteran's primary theory of entitlement was that he injured his right lower leg/ankle around March 1990 during ADT at Fort Rucker when he was running and his right foot got caught on a bar sticking up out of the ground and he fell.  See Form 9, May 2004; Army National Guard Retirement Points History Statement; April 2005 DRO Hearing Transcript at 3.  Service treatment records dated from March to May 1990 reflect treatment for right big toe tendonitis (noted twice as right foot tendonitis apparently as a transcriptional error) and for a resolving right ankle sprain, but a March 1990 x-ray of his right ankle was negative.  Ultimately, a September 2005 RO decision granted service connection for a right great toe disability, but the unappealed October 2011 Board decision denied entitlement to service connection for a right lower leg/ankle disability on a direct basis.

The Veteran asserted, for the first time in his September 2011 Informal Hearing Presentation to the Board, an alternate theory of entitlement based on secondary service connection (secondary to his service-connected right great toe disability), and attached certain articles addressed below.  As noted in the introduction above, the October 2011 Board decision bifurcated the issue of secondary service connection, which is the sole issue for decision herein.

As noted in the VCAA section, the Veteran was provided with VA examinations in January 2011 and May 2012, with a February 2013 addendum.  The January 2011 VA examination report (mistranscribed as "January 7, 2010") reflects that examination of the Veteran's right ankle revealed tenderness to palpation to the anterolateral and anteromedial aspects, but no swelling or crepitus.  Range of motion testing revealed dorsiflexion to 20 degrees and plantar flexion to 30 degrees, and that the Veteran was able to hold his foot at 90 degrees neutral.  No additional limitation of motion was noted due to pain, weakness, lack of endurance, or incoordination on repetitive testing, although he did complain of mildly increased pain on repetitive testing.  Anterior drawer testing was negative, the ankle was stable to inversion and eversion, and the Veteran did not complain of pain with eversion.  Examination of his right lower leg revealed no swelling, negative Homan's sign and Thompson's testing, no tenderness to palpation, no evidence of malunion or nonunion, and no pain on varus and valgus stress or with anterior and posterior stress.  The examiner recorded diagnoses including right ankle tenosynovitis, and a normal right lower leg examination with no abnormalities found.  Although the examiner addressed direct service connection, no opinion was provided regarding whether the Veteran had a right lower leg/ankle disability secondary to his right great toe.

The May 2012 VA examination report reflects the Veteran's reported history of falling and injuring his right great toe and ankle in service in 1990 (mistransposed as 1989).  He reported that his right ankle would intermittently swell up and be painful.  Examination of his right ankle revealed plantar flexion to 40 degrees with no objective evidence of pain, and dorsiflexion to 20 degrees or greater with no objective evidence of pain.  No additional limitation of motion after repetitive testing was noted.  No tenderness or pain to palpation was noted, strength was 5/5, no laxity was noted, and no ankylosis.  The examiner noted that diagnostic testing revealed no abnormal findings.  The examiner did not diagnose any current disability of the right ankle (except to note a prior right ankle sprain in 1990 (mistransposed as 1989).  

The Veteran reported that his right knee was currently asymptomatic.  Examination of the Veteran's right knee/leg revealed right knee flexion to 130 degrees with no objective evidence of pain, and extension to zero degrees with no objective evidence of pain.  Range of motion was noted as the same after repetitive testing.  Strength was noted as 5/5.  The Lachman test was normal, posterior drawer test was normal, varus/valgus testing was normal, there was no evidence or history of subluxation or dislocation, and no history of meniscal conditions.  The examiner opined that the Veteran currently has no right knee, lower leg, or lower ankle pathology or disability.  The examiner noted that x-rays of the Veteran's right ankle and knee were normal.  Therefore, the examiner opined that secondary service connection could not be substantiated.

In February 2013, an addendum VA medical opinion was provided by the same VA examiner to clarify whether the Veteran had a current right lower leg/ankle disability in light of the documented findings of swelling and reduced range of motion (and if so, whether it was secondary to his service-connected right great toe).  In his February 2013 VA opinion, the examiner explained that the Veteran does not have a current disorder involving the right lower extremity except for his service-connected right great toe (mild DJD).  While the examiner acknowledged some intermittent swelling (but no swelling at the time of the May 2012 examination), the examiner acknowledged that the etiology of the swelling was unclear.  The examiner explained that x-rays of the Veteran's right ankle and right foot were normal.  The examiner also noted that the limitation of motion by five to 10 degrees was a normal variant.  The examiner opined that it was less likely as not that the Veteran's right great toe disability was causing the intermittent swelling or reduced range of motion because the right great toe DJD is relatively minimal.

The Board acknowledges several private treatment records in the claims file dated through 2011, as well as service medical records dated through 2010, but the Board notes that these mostly reflect notations relating to other conditions and do not reflect any right lower leg or ankle complaints.

In light of the above, the Board finds that a preponderance of the evidence is against finding that the Veteran has a right lower leg/ankle disability secondary to his service-connected right great toe disability.  As shown above, the May 2012 VA examination report and February 2013 addendum opinion reflect that the VA examiner opined that the Veteran's left lower leg/ankle intermittent swelling and reduced range of motion symptoms are less likely as not related to his service-connected right great toe because his DJD in the toe was "minimal."  The Board finds the competent medical opinion of the VA examiner to be the most probative evidence of record with regard to etiology based on his medical education, training, and experience, and the Board finds that the examiner provided an adequate rationale for his conclusion.  While the Board acknowledges the Veteran's lay opinion that he has a right lower leg/ankle disability that was caused by his service-connected right great toe disability, the Board finds that the opinion of the May 2012 VA examiner is by far more probative based on his detailed findings and reasoning as well as his medical education, training, and experience.  See 38 C.F.R. § 3.159(a) (2012).

The Board acknowledges certain internet articles submitted by the Veteran in support of his claim, one of which provides that (as highlighted by the Veteran) "compensatory gait changes follow [hallux rigidus of the great toe] which include increased dorsiflexion at the ankle and increased knee flexion . . . these compensatory gait changes can lead to other injuries. . . A large dorsal exostosis can cause pain. . . hyperkeratoses may develop. . ."  The Board notes, however, that this article does not tend to etiologically link the Veteran's service-connected right great toe disability to his claimed right lower leg/ankle disability.  The other article provides in part that incorrect leg or foot movements or a sudden change in leg or foot activity may cause lower extremity tendonitis.  The Board notes again, however, that in the Veteran's particular case, the VA examiner explained that the Veteran's particular right great toe condition was too "minimal" to cause any secondary disability of the right lower leg/ankle.  In that regard, the Board finds the conclusion and reasoning of the May 2012/February 2013 VA examiner, based on an examination of the Veteran and which includes a detailed reasoning, to be by far more probative than this generalized article.

In sum, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a right lower leg/ankle disability as secondary to his service-connected right great toe disability; the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a right lower leg/ankle condition as secondary to a right great toe disability is denied.



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs