Citation Nr: 1326192 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-16 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to December 1975. He also had periods of active duty training and inactive duty training with the Reserve/National Guard. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In October 2012, the Board remanded the claims for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The issues of entitlement to service connection for right shoulder and back disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that a chronic bilateral foot disability, including peripheral neuropathy, hallux valgus, hammertoes, and plantar fasciitis, is related to the Veteran's active military service or events therein. CONCLUSION OF LAW A chronic bilateral foot disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in May 2007 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording a VA examination. To the extent there may be outstanding VA outpatient treatment records dated prior to January 1998 and after April 2007, the Veteran stated that he was first treated for a bilateral foot disability in 2006. VA outpatient treatment records documenting ongoing treatment for a foot disability since 2006 are of record and he has not argued that there are any outstanding pertinent treatment records relevant to his feet. In October 2012, the Board remanded the claim, in part, to obtain the Veteran's parachute jump records. The Appeals Management Center attempted to obtain the records, but received negative responses and determined that they were unavailable. The Veteran was notified in an April 2013 letter. The Board also remanded the claim to afford the Veteran a VA foot examination, which was conducted in November 2012. Therefore, to the extent possible, VA has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In the July 2013 Informal Hearing Presentation, the representative argued that the VA examination was inadequate because the examiner did not consider the appellant's Reserve and National Guard service. The Veteran, however, does not allege that his bilateral foot disability is a result of an event or injury sustained during active duty training or inactive duty training. During the Board hearing, he testified that he believed his current disabilities were the result of parachute jumps while on active duty and that he did not perform jump duties in the Reserve or National Guard (Hearing Transcript, pg. 14). The examination reports indicate that the examiner reviewed the claims file, noted the pertinent medical history, including the Veteran's history of parachute jumps while on active duty, and provided the requested medical opinion with supporting rationale. For these reasons, the Board finds that all questions necessary to render the determination made herein have been answered. The medical examination is therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). The appellant was also provided with the opportunity to attend a Board Hearing in March 2012. At a conference held in connection with the hearing, and during the hearing itself, the undersigned Veterans Law Judge fulfilled VA's duties under 38 C.F.R. § 3.103. Neither the appellant nor his representative has argued otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, any period of active duty training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran alleges that he has bilateral foot numbness related to parachute jumps while on active duty. During the Board hearing, the appellant testified that he landed on cement, water, trees, and hard ground, and was sometimes dragged (Hearing Transcript, pg. 18). He said he was a paratrooper for three years at MacDill Air Force Base and had over 100 jumps (Hearing Transcript, pg. 4). He reported that he did not parachute jump while in the Reserve or National Guard (Hearing Transcript, pg. 14). The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to bilateral foot numbness. In June 1971, he was treated for cellulitis of the right foot. During later examinations dated in July 1972, July 1973, July 1974, and May 1975, his feet were clinically normal. During August 1987, May 1990, and June 1996 examinations for the Reserve/National Guard, his feet were clinically normal and the appellant denied foot trouble. The Veteran filed a claim of entitlement to service connection for bilateral foot issues in April 2007. He reported that issues with his feet began in 2006. VA outpatient treatment records reflect that the Veteran complained of bilateral foot numbness from the balls of his feet distally in April 2006. The appellant said that he had had these problems for many years. In May 2006, electromyography and nerve conduction studies showed findings consistent with a primarily motor and demyelinating peripheral polyneuropathy. An August 2006 podiatry note reflects that the appellant reported having back pain and foot numbness since a car accident 10 years previously. The impression was polyneuropathy with possible radiculopathy and it was suggested he follow up with a neurologist. A December 2006 neurology note reflects that there was no evidence of radiculopathy. The neurologist's impression was that the Veteran's peripheral neuropathy was unrelated to his back pain. In January 2007, a neurologist noted that initial peripheral neuropathy laboratory results were unremarkable except for impaired fasting glucose tolerance. The physician noted that this "may well be the sole cause of his peripheral neuropathy." A May 2012 VA foot examination report indicates the Veteran had bilateral hammertoes, hallux valgus, and plantar fasciitis. The appellant reported that he had foot beginning in 2002. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the appellant was treated in service for right foot cellulitis and that on current examination there was evidence of plantar fasciitis and polyneuropathy. He also noted a current diagnosis of bunion, but said none of the conditions were related to the treatment of cellulitis in service. VA foot and peripheral nerve examinations were conducted in November 2012. The examiner indicated that the Veteran did not have any current foot conditions other than peripheral polyneuropathy. X-rays of the feet were normal. The Veteran reported the onset of a numb sensation in approximately 2006 and that he sought attention at a VA Medical Center. The examiner noted that the appellant was being followed for this condition and had been diagnosed with polyneuropathy. The examiner reviewed the claims file and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was insufficient evidence of a nexus between the Veteran's foot numbness and service, explaining that he reported the condition began and was diagnosed in 2006, approximately 30 years post-service. Furthermore, she noted that the service treatment records did not show that any complaints or treatment for foot numbness. The preponderance of the evidence reflects that the Veteran's bilateral foot numbness was not demonstrated in-service. Likewise, the conditions noted during the May 2012 examination (plantar fasciitis, hallux valgus, and hammertoes) were also not demonstrated in-service. Rather, the first indication of a bilateral foot disability occurred in April 2006 when he sought treatment at a VA facility. Although the Veteran is competent to report that which he has personally experienced, including foot pain and numbness, he has not alleged that he had these symptoms during active duty. Regarding onset, his reports have been inconsistent; the earliest onset he reported was in the mid-1990s, at the time of a motor vehicle accident. He has not asserted that the motor vehicle accident occurred during active duty training or inactive duty training. Therefore, the onset appears to have occurred, at earliest, in the mid-1990s during civilian life - approximately 20 years after active duty. Having found that the Veteran's current foot disabilities were not demonstrated in-service, the only remaining question is whether there is a nexus between any of his foot disabilities and service. See 38 C.F.R. § 3.303(d). In this case, the most probative and competent evidence preponderates against finding a nexus between the Veteran's current foot disabilities and service. In this regard, the Board finds the VA examiners' opinions highly probative. As the examiners explained the reasons for their conclusions, which were based on review of the claims file, pertinent medical history, and a clinical examination, these opinions are adequate for the adjudication of this claim and is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Although the May 2012 examiner identified foot conditions that were not diagnosed by the November 2012 examiner, the Board finds this immaterial in light of his negative opinion. Further, the Veteran's primarily complaint has been foot numbness, which was addressed by both examiners. Although the November 2012 VA examiner did not specifically note the Veteran's history of parachute jumps in the foot and peripheral nerve examination reports, it was noted in other examination reports conducted that same day. The Board considered the Veteran's lay contentions that his current bilateral foot disability is related to service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of his current foot conditions, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the Veteran's lay assertions regarding etiology were competent, the Board finds the VA examiners' opinions discussed in detail above are more probative. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a foot disability. The benefit of the doubt doctrine is not for application, and the claim is denied. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral foot disability is denied. REMAND Regarding the Veteran's claims of entitlement to service connection for back and right shoulder disabilities, a remand is necessary so an attempt can be made to obtain any outstanding, potentially relevant, VA outpatient treatment records. 38 C.F.R. § 3.159(c). The claims file includes VA treatment records from the VA Medical Center in Los Angeles dated from January 1998 to March 2002, and from January 2006 to April 2007. The Veteran also submitted VA treatment records dated in August and September 2011. A January 1998 VA treatment note indicates that the Veteran has a history of a right shoulder rotator cuff injury and had been evaluated by the orthopedic clinic six months previously. The Veteran also indicated that the onset of his low back disability was in 1993. Unfortunately, the RO did not obtain any VA treatment records dated prior to January 1998. The evidence reflects that the Veteran is receiving ongoing treatment at the VA Medical Center in Los Angeles. During the Board hearing, he said that he was treated once at the VA Medical Center in Long Beach a long time ago (Hearing Transcript, pg. 22). Therefore, an attempt should be made to obtain any outstanding, potentially relevant, treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain from the VA Greater Los Angeles Healthcare System and the VA Long Beach Healthcare System all outstanding, pertinent records of evaluation and/or treatment of any back and/or right shoulder disorder. Specifically, this should include all pertinent records dated prior to January 1998, from March 2002 to January 2006, and since April 2007. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Upon completion of the above requested development and any additional development deemed appropriate, to include obtaining supplemental VA medical opinions if deemed necessary, the RO is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs