Citation Nr: 1325781 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 08-09 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a bilateral foot disability. WITNESS AT HEARING ON APPEAL Appellant and her pastor REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from August 1991 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In her March 2008 substantive appeal, the Veteran requested a hearing before the Board at the RO (Travel Board). The Veteran was afforded a hearing at the RO in May 2009. In May 2010, the Veteran canceled the Board hearing. 38 C.F.R. § 20.702(e). In May 2011, the Board granted entitlement to service connection for left and right knee disabilities and for migraines, and denied service connection for bilateral ankle, low back, and right and left hip disabilities. In addition, the Board remanded the issues of entitlement to service connection for a bilateral foot disability and for a psychiatric disability, to include PTSD. In June 2012, the Board again remanded the issues of entitlement to service connection for a bilateral foot disability and for a psychiatric disability, to include PTSD, for additional development. In this decision, the Board noted that, at her hearing the Veteran raised a claim for service connection for a neck disability. This issue was referred to the RO for initial adjudication; but has not been adjudicated. It is again referred for initial adjudication. In May 2013, the Appeals Management Center granted entitlement to service connection for PTSD, evaluated as 30 percent disabling effective May 23, 2005. Although the Veteran had been diagnosed as having major depression in the past, the rating decision is deemed to have granted service connection for the current psychiatric disability regardless of diagnosis. In addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. FINDINGS OF FACT 1. A bilateral foot disability, to include osteoarthritis 1st MTP joints bilaterally, not result of a disease or injury in active military service. 2. The hallux valgus disability noted on service entry did not increase in severity during service. CONCLUSION OF LAW A bilateral foot disability, to include osteoarthritis 1st MTP joints bilaterally, was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA), imposes duties on VA to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in October and November 2005 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal. Accordingly, no further development is required with respect to the duty to notify. In the instant case, the appellant was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, Social Security Administration disability records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2009 before the RO. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In this case, the Board remanded the claim to obtain additional service personnel records that would show the Veteran's job performance. This was in conjunction with the then pending claim for service connection for PTSD. NPRC has reported that all available records were sent. A Formal Finding of Unavailability of Service personnel records, dated in April 2012, was associated with the claims file detailing the efforts undertaken to find additional relevant records. VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). These additional records would not be relevant to the claims for service connection for foot disability, inasmuch as the Veteran has testified that she received no treatment for foot disabilities in service and has not reported any personnel actions related to the foot disabilities. A The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's May 2009 hearing the presiding Decision Review Officer identified the issues, alluded to the need for supporting medical opinions, and asked questions aimed at determining whether there was outstanding evidence that would support the claims. At the hearing, the Veteran and her representative reviewed the service treatment records and indicated that they were complete. In addition to the service personnel records, the Board remanded the claim to insure that the Veteran was provided an adequate VA examination. The VA examination in March 2013, yielded an opinion that was based on consideration of an accurate history, including the Veteran's reports. The opinion was definitive and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (laying out criteria for an adequate medical opinion). Hence, the opinion was adequate and in compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that the Board has a duty to insure compliance with remand instructions). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection will be presumed for listed chronic diseases, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309. Service connection will be conceded for a chronic disease identified in service and at any time thereafter. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires 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 disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. Cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. Moreover, in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit Court found that, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. When a preexisting defect is noted on entry to service, there is no need to address whether the presumption of soundness is rebutted in this instance for this particular disorder. A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 1153; 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that she developed bilateral foot disability, to include hallux valgus and osteoarthritis, as the result of numerous parachute jumps during service and discomfort from the boots she was required to wear. Service personnel records show that she received the parachutist badge On the Veteran's examination for service entrance in April 1991, she was noted to have asymptomatic pes planus and mild hallux valgus. Service treatment records show that the Veteran had an insect bite on her right big toe and an ingrown toenail. Consistent with her testimony they show no other treatment for, or findings of, a foot disability. A VA podiatry treatment record, dated January 2006, reflected that the Veteran had hallux valgus and degenerative joint disease of the first metatarsophalangeal joint. Private medical records from May 2009 suggest that the Veteran's degenerative joint disease in her feet was associated with parachute jumping. Treatment records from the Sandhill Medical Group dated in May 2009, reflect the Veteran's reports that she had sustained injuries from jumps from airplanes in service as well as from ill-fitting boots. The records also contain her reports of having been denied VA benefits. At the May 2009 hearing the Veteran stated her belief that she had developed foot problems as the result of the parachute jumps and uncomfortable boots in service. She reported that there was no in-service treatment and that she could not recall when she had first been seen after service, but that it had been at the local VA facility. In accordance with the Board's May 2011 remand, the Veteran was afforded a VA foot examination in September 2011. The examiner acknowledged that the record contained X-rays that had reflected arthritis of the Veteran's first MTP joints. X-rays provided in conjunction with the examination; however, reportedly did not reveal arthritis. The examiner did not clarify whether the Veteran had current arthritis related to injury in service. In addition, the examination report provided a rationale for finding that hallux valgus was not incurred during the Veteran's attendance at jump school, but did not say whether the disability was related to any other injury in service. As such, the matter was remanded again for additional opinion. The report appeared to be cut off in mid-sentence. The Board therefore, remanded the claim again in June 2012. The Veteran was afforded an additional examination in connection with her claim in March 2013. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was diagnosed as having hallux valgus and osteoarthritis1st MTP joints bilaterally. The Veteran reported that she had 25 parachute jumps in service. She reported one jump related injury due to poor landing where she suffered a concussion. The Veteran also reported twisting her left ankle a few times in ruck marches. She denied any foot/toe related injury or fractures of lower extremities or related treatment during service. She reports a history of army issued boots hurting her feet, which she did not report due to a fear of retaliation. Symptoms included shooting pain from great toe to heal, greater in the left foot. The examiner noted that a review of the entrance physical listed asymptomatic hallux valgus and pes planus. The Veteran was also noted to have sought treatment in March 1992 for complaints of swollen right big toe and status post insect bite. The Veteran was assessed as having an ingrown toenail and paronychial infection of the right great toe. There were no other treatment reports of foot problems in her service records. The retention examination dated in December 1992 also noted asymptomatic bilateral hallux valgus deformity. The examiner indicated that there was no documentation of any foot conditions until a VA visit and X-ray in July 2005, which showed degenerative joint disease of the right 1st MTP and a January 2006 treatment note indicated hallux valgus and degenerative joint disease right 1st MTP. After examination, the March 2013 VA examiner found that both diagnosed disabilities of the feet, osteoarthritis of the 1st MTP bilaterally and hallux valgus, were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also found that the hallux valgus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury event, or illness. The examiner stated that, aside from the treatment for swollen great right toe, there was no treatment for the Veteran's feet in service despite treatment for other complaints. The examiner also noted the gap in treatment until 2005. As such, the examiner found that it was less likely that osteoarthritis of the 1st MTP joint was due to a disease or injury in service. With respect to the diagnosed hallux valgus, the examiner noted that this condition preexisted service and was noted on the entrance examination. The examiner also noted that there was no documentation of aggravations of the hallux valgus during military service. While the Veteran indicated that she did not seek additional treatment for her feet for fear of retaliation, the examiner noted that the Veteran sought treatment once for her great toe and also sought treatment for other unrelated conditions in service. Analysis The record clearly shows a current foot disability, namely arthritis and hallux valgus. The record also includes the Veteran's reports of numerous parachute jumps and uncomfortable boots during service. Her testimony is consistent with her receipt of the parachutist badge. Hence, two of the elements for service connection are established. The remaining question is whether the current disabilities can be linked to the in-service injuries or hallux valgus was aggravated in service. The March 2013 VA examiner found that neither condition was caused or aggravated by the Veteran's military service. As noted, that opinion is adequate, and it is not contradicted by any other competent medical evidence. The Veteran has not reported a continuity of symptomatology and there is no other evidence of symptoms continuing since service. The Veteran has provided opinions to the contrary of the VA examiner. Lay persons are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It would require medical expertise; however to say that foot disabilities identified many years after service were related to events in service. The appellant's opinion as to the causes of the current foot disabilities are not deemed competent. The Veteran's diagnosed hallux valgus was noted on service entry; as such the presumption of soundness is not for application. The Veteran has indicated that the disability did increase in severity in service and her reports of in-service symptoms are competent. These reports do not appear to be credible; however, inasmuch as she did not report any ongoing symptoms when seen for the insect bite on her great toe or when seen for other conditions during service. Moreover, the disability was noted to be asymptomatic on the examination for service separation. While she has suggested that she did not report symptoms due to fear of retaliation, there could have been no retaliation at the time of her service separation when she was leaving military control. Additionally, she was not afraid to report the insect bite and a rash during service. The VA examiner specifically found that the condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury event, or illness and there is no other competent and credible evidence of aggravation. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral foot disability, to include hallux valgus and osteoarthritis 1st MTP joints bilaterally, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs