Citation Nr: 1326083 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-15 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a bilateral foot disability. ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1980 and from January 1981 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the Veteran's claim for service connection for a bilateral foot disability. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's claimed bilateral foot disability is the same as his service connected right ankle tendinitis with calcaneal spur and recurrent left ankle sprains with left leg neuritis and calcaneal spur. CONCLUSION OF LAW The requirements for establishing service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In an October 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2009 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, and the Veteran's statements. The Board finds that the May 2010 VA examination conducted in connection with the claim is adequate because the examiner was informed of the relevant facts regarding the Veteran's medical history and addressed the relevant criteria. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service treatment records for both periods of service show that the Veteran received treatment on many occasions for his bilateral feet. Specifically, he received treatment for benign trauma of the 5th metatarsal of the right foot in June 1980; contusion of the right middle toe and ligament strain of the same in September 1983; contusion of the right foot in June 1984; resolving crush injury of the right foot in August 1984; tenderness of the left foot after having it caught between the trailer of a truck in September 1986; tenderness over the bone of the 5th metatarsal of the left foot in March 1987; contusion of the left foot in April 1987; plantar fascia strain of the right foot in September 1987; inversion injury to the left ankle and foot in April 1990; left foot pain in October 1992 and February 1996; and insertional peroneal tendonitis v. neuralgia of the left foot in March 1997. The Veteran was placed on physical profile for his neuralgia in the bilateral feet and ankles in October 1995, December 1995, February 1996, May 1996, July 1996, September 1996, December 1996, March 1997, and April 1997. However, various x-rays of the feet, as well as an October 1995 bone scan of the feet, revealed no abnormalities or fractures. On separation examination in May 1997, the Veteran was noted to have degenerative joint disease of the bilateral ankles and questionable left foot tendonitis. On VA examination in May 1998, the Veteran reported that his right foot had been injured by a doctor twisting his foot in order to perform a stress x-ray. He complained of discomfort below the lateral malleolus and reported being diagnosed with possible neuritis by history. He stated that he had discomfort in the right foot after weightbearing for 30 minutes, and that the discomfort would progress to a sharp pain. He indicated that his foot would feel better after he rested for 30 to 60 minutes at a time. Regarding his left foot, the Veteran reported that he had sprained his left ankle while running in place 2 to 3 years ago. He maintained that he had sought treatment, was diagnosed with tendinitis, and treated with a nerve stimulator. He stated that his right foot pain was greater than his left foot pain, and indicated that his left foot pain was located below the lateral malleolus. X-rays of the bilateral feet revealed bilateral calcaneal spurs. Examination of the feet was normal. The examiner noted no residual evidence of a right 5th toe fracture. The Veteran's radiographs were found to be normal, other than the calcaneal spurs. In a December 1998 private medical report, the Veteran was noted to have stubbed his right little toe on a door. He was treated for fracture of the right 5th toe. A November 2007 VA medical report indicates that the Veteran stubbed his left little toe on a wooden chair leg the night before. He complained of a bruise and pains. He was diagnosed and treated for closed fracture of the left 5th toe proximal phalanx. In a July 2009 VA comprehensive diabetic foot examination, the Veteran had steady and unassisted gait. He was wearing comfortable shoes. There was no evidence of edema in the bilateral lower extremities, and skin was intact without lesions. The toenails were neatly trimmed. The left great toenail was red on the inner side of the nail, but it was not warm or ingrown at this time. Temperature was cool and equal bilaterally. Dorsalis pedis pulses were minimal bilaterally, and capillary refill was less than 2 seconds. No deformities were present, and neurological examination was normal. The Veteran was found to be in the risk category of 0. At a December 2009 VA examination, the Veteran was diagnosed with right ankle tendonitis with no limitation of motion, and left ankle recurrent sprain with left leg neuritis and no limitation of motion. X-rays of the bilateral ankles showed bilateral calcaneal spurs. On VA examination in May 2010, the Veteran reported that he originally developed pain in his left ankle/foot in 1995 after he twisted it. However, the examiner noted that the service treatment records revealed multiple visits prior to 1995 for left ankle/foot and right foot complaints. The examiner also noted the service treatment records indicating multiple visits after 1995 for bilateral ankle/foot complaints. The Veteran complained that he continued to have daily discomfort over the lateral aspect of the bilateral ankles/feet after 2 hours of standing or walking. He perceived his ankle and foot disabilities as being one and the same problem, not separate problems. He reported that he experienced continued pain and occasional stiffness and swelling, but denied any instability or locking. He stated that his daily ankle/foot discomfort was a 10/10 in severity and would last for an hour. He indicated that he treated this by getting off of his feet and relaxing, which would resolve his symptoms. He took no medication for his bilateral ankle/foot condition and had no flare-ups. He had no limitations in sitting, walking up 8 flights of stairs, or activities of daily living. He did not use any assistive devices for walking, nor did he use any braces, corrective shoes, or shoe inserts. After a thorough physical examination and detailed review of the claims file, the Veteran was diagnosed with normal bilateral feet. The examiner indicated that the coincidental x-ray findings of asymptomatic bilateral heel spurs and right hallux valgus were unrelated to the Veteran's current foot condition. The examiner opined that the Veteran's present painful foot condition was most likely a result of the chronic painful condition shown in his service treatment records. He explained that this was based on the fact that the Veteran's symptoms and the location of his discomfort were similar to the symptoms and physical examinations that were documented in the service treatment records. The examiner found that the Veteran's current condition was the same as the bilateral ankle condition that had been previously diagnosed at the December 2009 VA examination. He reported that in the service treatment records, the Veteran's painful condition had been variously described by examiners as foot pain or ankle pain. The examiner therefore concluded that the foot and ankle pain were one and the same and originated from tendonitis, most likely of the peroneus brevis tendon. He explained that the peroneus brevis tendon crossed the ankle and attached to the foot. He asserted that the Veteran's condition could be called either ankle tendonitis or foot tendonitis, but it was not considered to be separate conditions of both the ankle and foot. He also noted that it was not unusual for this type of condition to become chronic and recurrent. Although the Veteran's service treatment records show numerous instances of treatment for bilateral foot/ankle disabilities, at no time did any of the Veteran's treating providers find that he had a bilateral foot disability separate from his service-connected right ankle and left ankle disabilities that was due to his period of service. The May 2010 VA examiner reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the opinion that while the Veteran's present painful foot condition was most likely a result of the chronic painful condition shown in his service treatment records, it was the same as the bilateral ankle condition that had been previously diagnosed and had most likely originated from tendonitis of the peroneus brevis tendon. The examiner cited the current medical findings, which revealed that the Veteran's symptoms and the location of his discomfort were similar to the symptoms and physical examinations that were documented in the service treatment records. He also explained that the peroneus brevis tendon crossed the ankle and attached to the foot, and that while the Veteran's condition could be called either ankle tendonitis or foot tendonitis, it was not considered to be separate conditions of both the ankle and foot. For these reasons, the May 2010 VA opinion is afforded great probative value. The Board acknowledges that in addition to the diagnosis of bilateral ankle tendonitis or foot tendonitis, the Veteran's bilateral foot disability has been variously diagnosed as right toe and left toe fractures, asymptomatic bilateral heel spurs, and right hallux valgus. However, with respect to the toe fractures, the evidence shows that these injuries were clearly incurred in December 1998 and November 2007, after the Veteran's discharge from service in January 1998. Therefore, there is no medical evidence that these disabilities had their onset in or are related to the Veteran's periods of active service. Regarding the right hallux valgus, service treatment records show no complaints or treatment for hallux valgus, and there is no medical evidence suggesting that the Veteran's hallux valgus is related to the Veteran's periods of service. Indeed, the first post-service evidence of right hallux valgus was in May 2010, which was approximately 12 years after the Veteran's discharge from service. Additionally, the May 2010 VA examiner found that the hallux valgus was unrelated to the Veteran's current foot condition (which had been noted to have had its onset in service). Therefore, there is no medical evidence that the Veteran's right hallux valgus had its onset in or is related to his periods of active service. Crucially, the symptoms for which the Veteran seeks service connection are not hallux valgus and toe fracture and the Veteran's complained of symptoms have not been clinically linked to hallux valgus and toe fracture, and therefore, these disorders are outside the scope of the appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (providing that when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). With respect to the bilateral heel spurs, the Board notes that the heel spurs have already been considered in the ratings for the Veteran's right ankle and left ankle disabilities. Indeed, the Veteran specifically has a 10 percent rating for right ankle tendinitis with calcaneal spur, and a 0 percent rating for recurrent left ankle sprains with left leg neuritis and calcaneal spur. Thus, service connection is already in effect for heel spurs. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's claimed bilateral foot disability is etiologically related to symptoms noted in service falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of foot pain, any actual diagnosis of a bilateral foot disability requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the symptoms the Veteran experienced in service or following service are in any way related to any current bilateral foot disability requires medical expertise to determine because it involves a complex medical matter. To the extent that the Veteran himself believes that he has a current bilateral foot disability that is due to his period of service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current bilateral foot disability is not competent evidence, as such question requires medical expertise to determine. Id. The competent and credible medical evidence of record shows that in regard to the complained of symptoms the Veteran's current bilateral foot disability for which he seeks service connection is the same as his service connected right ankle tendinitis with calcaneal spur and recurrent left ankle sprains with left leg neuritis and calcaneal spur. Accordingly, service connection for a bilateral foot disability is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs