Citation Nr: 1327717	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  07-27 792A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a bilateral foot disability, to include flat feet, plantar fasciitis, tarsal tunnel syndrome and arthritis. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from May 1986 to August 1989. 

This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

In a March 2011 decision, the Board remanded this issue for additional development.


FINDINGS OF FACT

1.  A bilateral foot disability did not preexist service.  

2.  The preponderance of the evidence is against a finding that the Veteran's bilateral foot disorder is related to service. 


CONCLUSION OF LAW

The criteria for service connection for a bilateral foot disability, have not been met.  38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In this appeal, the RO provided notice to the Veteran in a March 2011 letter which explained what information and evidence was needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

The March 2011 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  After issuance of the March 2011 letter, and opportunity for the Veteran to respond, the July 2012 supplemental statement of the case (SSOC) reflects readjudication of the claim.  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice.  See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of February 1990, November 2006 and June 2012 VA examinations.  The February 1990, November 2006 and June 2012 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  As such, the Board finds that the February 1990, November 2006 and June 2012 VA examination reports are sufficient upon which to base a decision with regard to this claim.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative.  The Board finds that no additional RO action to further develop the record on the claim is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology.  

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 

A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service.  38 U.S.C.A. § 1111.

To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004). 

To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence.  Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).

The Board has reviewed all 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). 

Factual Background and Analysis

The Veteran claims that he currently has a bilateral foot disability that had its onset during active duty military service.  

The Veteran's examination upon enlistment dated in February 1986 indicated a "normal" clinical evaluation of the Veteran's feet.  In May 1987, he sought treatment in service for pain on the bottoms of both feet with radiating pain up both calves.  He was diagnosed with "moderate pes planus" at that time.  

The Veteran underwent a VA examination in February 1990.  The examiner noted that in the latter part of 1987, the Veteran developed pain with prolonged standing.  He was evaluated and told that he had flattening of the arches.  There was some relief with the use of arch supports and tennis shoes.  He was unable to walk when not wearing shoes but was asymptomatic when wearing tennis shoes.  On examination, the Veteran had slight flattening of the longitudinal arches but there was no medial bulging and no eversion.  The soles of both feet were smooth.  There was no evidence of plantar fasciitis or metatarsalgia.  He did have slight callous formation over the medial lower portion, medial distal portion of the right great toe and to a lesser degree the left great toe.  The diagnosis was pes planus, bilaterally, mild.  Significantly, X-rays of the bilateral feet were negative.

Similarly, a November 1997 x-ray of the left foot demonstrated no significant findings.

In a December 1997 treatment note, the Veteran presented with complaints of a burning pain in both feet which shot up his legs.  The physician noted that there was evidence of polyneuropathy in both feet as evidenced by his decreased vibratory sense.  The most likely etiology of this condition was the pathology of the spine in the lumbar region.

While prior X-rays in November 1997 and February 1990 were negative, September 1998 x-rays demonstrated bilateral plantar fasciitis.  Also in September 1998, the Veteran underwent an open left plantar fasciotomy.

A February 1999 MRI noted that the Veteran had a clinical history of severe tarsal tunnel syndrome bilaterally.  On examination, the tarsal tunnel appeared unremarkable bilaterally.  Overall, it was a negative examination.

A June 1999 x-ray of the left foot revealed very early degenerative changes on the first metatarsophalangeal joint and a small plantar calcaneal spur.

An April 2000 MRI of the feet noted that the Veteran had undergone 2 tarsal tunnel surgeries and presented with pain in the left foot and ankle.  The MRI of the bilateral ankles was normal.  

An August 2001 x-ray of the right foot demonstrated a nondisplaced fracture, proximal first metatarsal bone.

The Veteran underwent a VA examination in November 2006.  It was noted that the Veteran had undergone 3 surgeries of his left hind foot medially.  He experienced intermittent and non-constant left foot pain after 15-20 minutes of standing and walking.  The left foot was more symptomatic than the right foot.  X-rays of the right foot revealed a small calcaneal spur and a mild arthritic change at the first metatarsophalangeal joint.  There was no fracture or dislocation.  X-rays of the left foot revealed mild arthritic change at the first metatarsophalangeal joint with no fracture or dislocation.  The diagnosis was normal arch of the right and left foot at rest and weightbearing.  The examiner opined that it was less likely as not that the Veteran's in-service notation in May 1987 for flat feet was congenital.  The examiner indicated that the Veteran did not have flat feet or pes planus bilaterally presently and he did not believe that this existed in the past.  The examiner noted that it would be resorting to mere speculation to opine as to why the Veteran's feet bothered him today as to aggravation.  X-rays revealed mild arthritic change at the first metatarsophalangeal joint of the left foot and a small calcaneal spur and mild arthritic change at the first metatarsophalangeal joint of the right foot.  There were no fractures or dislocations.

Per the March 2011 remand instructions, the Veteran underwent a VA examination June 2012.  The examiner noted that the Veteran currently did not have the same condition with his feet that was diagnosed in the military as his foot condition had changed over the years.  Currently, the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw toes, mal or nonunion of the metatarsal bones, or other foot injuries.  He has been diagnosed with plantar fasciitis and tarsal tunnel syndrome and had treatment.  

The March 2011 examiner noted that the Veteran's service treatment records contained only 1 entry where he presented with complaints of foot pain.  Specifically, in May 1987, he presented with pain in both of his feet which radiated up to his calf areas.  The examiner noted that the in-service physician remarked that the Veteran's bilateral feet appeared flat and the Veteran was assessed with moderate pes planus.  The examiner also acknowledged the findings of the February 1990 VA examination which indicated that there was no evidence of plantar fasciitis or metatarsalgia but found mild, bilateral pes planus with negative X-rays of both feet.  

The examiner indicated that when reviewing the Veteran's extensive podiatry records, there was no mention at all on yearly examinations of any deformities of the feet.  Specifically, in June 1999 there was no mention made of any deformity of the feet as there was no pes cavus, no pes planus, no hammertoes and no hallux rigidus.  The Veteran did have surgery on his feet as he underwent a tarsal tunnel release of the left medial hind foot in February 1999.  In July 1999, there was a reexploration of this area with neurolysis of the calcaneal branch of the left foot.  There was also a third operation on the left foot conducted a year earlier that had a diagnosis of plantar fasciitis with a plantar fasciotomy and partial excision of a left calcaneal spur.  Thus, the examiner noted that the Veteran had surgery only on the left foot and it was for tarsal tunnel syndrome and plantar fasciitis.

The examiner indicated that none of the podiatry records made any reference to any foot deformities and certainly not to pes planus from 1999 to 2012.  However, the examiner noted that the Veteran was diagnosed with diabetes mellitus subsequently.  While the Veteran was a noninsulin-dependent diabetic in 1999 and was initially taking pills, in 2007 he had a myocardial infarction and began taking insulin.  From that time forward, there were symptoms beginning of numbness, and burning and tingling sensations in both feet, more so left than right.  Sensory changes were noted but at no time was any observation of pes planus ever made by the podiatrist.

An electrodiagnostic study was done in May 2000 of both feet which was normal with an improvement of distal latency of the left tibial nerve as compared to an earlier study done in 1997.  The May 2000 study was conducted after a tarsal tunnel release and indicated that improvement had occurred after surgery.  However, another electrodiagnostic study was done in March 2009 which noted complaints of numbness in the feet and shooting and burning pain which had been "on and off" for 2 years.  It was noted that the Veteran had been a diabetic since 1989 and there was decreased sensation to pin prick in a stocking fashion bilaterally in the lower extremities.  Findings were abnormal and compatible with polyneuropathy.

The examiner noted that VA treatment reports had listed 30 diagnoses for the Veteran but pes planus was not one of them.  A VA neurology note indicated that the Veteran had sensory ataxia due to diabetic polyneuropathy.

The examiner indicated that a review of the Veteran's extensive medical records showed no evidence of pes planus over the years but rather the development of a peripheral neuropathy with sensory ataxia due to insulin-dependent diabetes mellitus.  

While the Veteran reported that he was told that he had flat feet in the military, he noted that he had actually been told that he did not have flat feet but rather had a high arch.  On examination, there was absent sensory vibratory sensation below the knees and decreased sensation to pin below the knees.  X-rays of the left foot showed a normal longitudinal arch with a small 3mm calcaneal spur, which was a residual of the spur that was excised through surgeries from 1998 to 1999.  There was no evidence of osteoarthritis of the left foot.  X-rays of the right foot showed a normal longitudinal arch, well formed with no osteoarthritis.  The examiner noted that previous x-rays done in 1999, 2000 and 2001 showed normal arches in his feet.  The diagnosis was diabetic sensory neuropathy of both lower extremities.

The examiner again noted that the Veteran had prior surgery for calcaneal spur of the left foot and tarsal tunnel syndrome of the left foot.  He had never been diagnosed with pes planus by the VA Podiatry Clinic despite ongoing treatment received there since 1999.  A VA examination in 2006 and the examination today did not show any evidence of pes planus.  The examiner determined that the Veteran did not have pes planus but rather had a well-formed longitudinal arch of both feet.  The Veteran's foot condition was not related to the single in-service entry in May 1987.  He was treated at the VA for left foot plantar fasciitis and tarsal tunnel syndrome which was not related to his in-service complaint in 1987.  His current foot condition was sensory neuropathy which was secondary to his diabetes mellitus.  This currently diagnosed condition "has nothing to do with his military service".  The Veteran's foot condition did not preexist prior to entering the military.  The Veteran's current condition did not develop until after he was diagnosed with diabetes.  Finally, the surgery on his left foot did not develop until after he had left the military.

Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that his current bilateral foot disability is related to military service.  

Initially, the Board notes that the Veteran's examination upon enlistment dated in February 1986 indicated a "normal" clinical evaluation of the Veteran's feet and the June 2012 VA examiner opined that the Veteran's foot condition did not preexist prior to entering the military.  As there is no evidence of a preexisting foot disability, the presumption of soundness is not rebutted.  See Wagner, supra.

The Board observes that the Veteran complained of foot problems within one year of his separation from service.  While VA regulations provide for the grant of service connection on a presumptive basis for arthritis that becomes manifest to a compensable degree within one year of separation, the February 1990 X-ray studies are negative for an arthritic disability of the feet.  There is no other evidence of a diagnosis of arthritis within one year of service.  Accordingly, service connection on a presumptive basis is not warranted.  

There is a current diagnosis of diabetic sensory neuropathy of both lower extremities; hence, the first element of service connection is satisfied.  However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

The Board acknowledges that the Veteran's service treatment records demonstrate that in May 1987, the Veteran sought treatment in service for pain on the bottoms of both feet with radiating pain up both calves and was diagnosed with "moderate pes planus" at that time.  The remainder of the service treatment records however, is negative for any complaints or diagnoses of any chronic bilateral foot disorders.  Significantly, after a review of the Veteran's service treatment records, the November 2006 VA examiner indicated that the Veteran did not have flat feet or pes planus bilaterally presently and he did not believe that this existed in the past.  Additionally, the June 2012 VA examiner noted that the Veteran did not have pes planus in-service, but rather had a well-formed longitudinal arch of both feet.

Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current bilateral foot disability and the Veteran's military service.  In fact, the only medical opinions addressing the etiology of the bilateral foot disability weighs against the claim.  As indicated above, the June 2012 VA examination determined that the Veteran's bilateral foot disability was not related to his service.

The June 2012 VA examiner noted that the Veteran was treated at the VA for left foot plantar fasciitis and tarsal tunnel syndrome which was not related to his in-service complaint in 1987.  While the Veteran underwent surgery for a left foot condition, the examiner opined that the surgery on his left foot did not develop until after he had left the military.  The examiner also noted that the Veteran's current condition of sensory neuropathy was not related to service as the condition did not develop until after he was diagnosed with diabetes.  

The examiner also indicated that the Veteran currently did not have the same condition with his feet that was diagnosed in the military as his foot condition had changed over the years.  Specifically, the Veteran developed peripheral neuropathy with sensory ataxia due to insulin-dependent diabetes mellitus.  The Board notes that while the Veteran's current foot disability has been attributed to his diabetes mellitus, he is not service-connected for diabetes mellitus.  Accordingly, service connection on a secondary basis is not warranted in this instance.  See, Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion.  

The Board also notes that a June 1999 x-ray of the left foot revealed very early degenerative changes on the first metatarsophalangeal joint and a small plantar calcaneal spur and November 2006 x-rays demonstrated a small calcaneal spur and a mild arthritic change at the first metatarsophalangeal joint of the right foot and mild arthritic change at the first metatarsophalangeal joint with no fracture or dislocation.  Notably, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden criteria for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology.  

However, the most recent VA examination in June 2012 indicated that X-rays of the bilateral feet showed no evidence of osteoarthritis.  The examiner again noted that previous x-rays done in 1999, 2000 and 2001 showed normal arches in his feet and the current diagnosis regarding the Veteran's bilateral foot disability was diabetic sensory neuropathy of both lower extremities.

Accordingly, the Board finds that the Veteran does not have a current diagnosis of arthritis as evidenced by the most recent June 2012 x-ray reports.  Thus, as to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that this regulation is not applicable to the current appeal because the Veteran's bilateral lower extremities neurological disability, diagnosed as diabetic sensory neuropathy is not listed at 38 C.F.R. § 3.309(a).  See Walker; supra.  The Board thus finds that entitlement to service connection for a bilateral foot disability based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b).

Given that the most probative opinion is against a finding of a relationship between a bilateral foot disability and service, the Board finds that service connection is not warranted.  In reaching this conclusion, the Board has again considered the Veteran's contentions regarding the nature and etiology of his claimed bilateral foot disability, as well as the evidence submitted by him and his representative contending that his claimed bilateral foot disability is related to service.

To the extent that the Veteran himself contends that a medical relationship exists between his current claimed disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds the question as to the etiology of the Veteran's current bilateral foot disability is a question that requires medical expertise to answer.  While some symptoms of the disorder may be reported by a layperson, the Veteran and his representative do not have the medical expertise to provide an opinion regarding its existence or etiology.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  

Thus, the Veteran and his representative's assertions that there is a relationship between his claimed bilateral foot disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  


ORDER

Entitlement to service connection for a bilateral foot disability, to include flat feet, plantar fasciitis, tarsal tunnel syndrome and arthritis is denied.


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs