Citation Nr: 1327900 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 04-31 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability, to include as secondary to a right foot disability. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned at a September 2005 Travel Board hearing. The hearing transcript is of record. By decision of February 2007, the Board denied service connection for right and left foot disabilities. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims (Court). By June 2008 Order, the Court vacated the Board's February 2007 decision and remanded the matters to the Board for compliance with instructions contained in a May 2008 Joint Motion for Remand of the appellant and the VA Secretary. By decisions in January 2010, September 2011 and November 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. A right foot disability was not present in service or for years thereafter, and is not etiologically related to service. 2. A left foot disability was not present in service or for years thereafter, and is not etiologically related to service or service-connected disability. CONCLUSIONS OF LAW 1. A right foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left foot disability was not incurred in or aggravated by active military service, its incurrence or aggravation during such service may not be presumed, and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. § 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a November 2003 letter, issued prior to the adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran and the second and third elements of Dingess notice are satisfied by the November 2003 letter. However, the Veteran did not receive notice about the evidence needed to establish a rating or notice regarding an effective date. Since the claims are being denied, no rating is being given and no effective date is being set. The failure to provide notice on the effective date and rating elements of the claims is harmless. Smith v. Shinseki, No. 08-1667 (Aug. 17, 2010). The Board notes that all pertinent evidence has been obtained in this case and the Veteran was afforded a VA examination for his bilateral foot disability in April 2010. As discussed further below, the April 2010 examiner's opinion was inadequate, and as such, the Board remanded the claim in November 2012, to afford the Veteran another VA examination for his bilateral foot disability. Evidence of record indicates that the Veteran was scheduled for a VA examination in March 2013, but he failed to appear for the examination, and he has not provided an explanation for his failure to report or requested that the examination be rescheduled. In the case of an original claim, when a Veteran fails to appear for a scheduled examination, federal regulations state that the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b). Therefore, the case must be decided based on the evidence of record. Furthermore, the Board finds that the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the denied claims. The Board is also unaware of any such evidence. In sum, the Board concludes that any errors in the notice and the development of the claim by the originating agency were not prejudicial to the Veteran. Legal Criteria 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As coronary artery disease is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Id. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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"). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2011); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his currently diagnosed right foot disability developed as a result of a right foot injury in service. The Veteran does not contend and the evidence does not show that his current left foot disability was incurred during his active military duty. Rather, he contends that his currently demonstrated left foot disability developed as a result of him overcompensating for his right foot disability, which he claims is related to his active military service. No right or left foot disability was diagnosed until many years after service, and there is no competent evidence to establish that any current right or left foot disability is due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any chronic disability of either foot. Although the Veteran was seen on one occasion in service in July 1968 with complaints of a painful right heel and inflammation of the heel bone after an injury while playing baseball, no actual right foot pathology was objectively demonstrated. The right foot was unremarkable on examination that day, and there was no evidence of left foot complaints or involvement. Two days later, in July 1968, the Veteran specifically denied lameness and foot trouble of any kind, and both feet were normal on examination. Over two years later, both feet were again normal during the August 1970 separation examination. The first objective demonstration of actual foot disabilities was the mild osteopenia and degenerative arthritic changes of both feet shown on VA X-rays of April 2002, over 31 years post service. At that time, there was no history relating such pathology to military service or any incident thereof, and in fact the examiner recorded only a 3-year history of chronic foot pain. Significantly, the VA X-ray report noted that no old or recent foot fracture was seen. Subsequent VA medical records show continuing post-service medical and podiatric follow-up treatment and evaluation of the Veteran for foot complaints through 2004, but these do not contain any medical opinion linking any foot disability to military service or any incident thereof, or a left foot disability to a right foot disability of service origin. A June 2002 VA podiatrist noted that the history indicated no frank injury to the Veteran's lower extremities in the past or recently. On February 2004 examination, a VA neurologist diagnosed axonal neuropathy in the Veteran's distal lower extremities, but the cause of this was not identified, and in any event the onset of excruciating foot pain was noted to have occurred only five years prior to that. This evidence also contains no medical opinion linking any foot disability to military service or any incident thereof, or a left foot disability to a right foot disability of service origin. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a right or left foot disability, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id. cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In accordance with the Board's January 2010 remand, the Veteran was afforded a VA examination in April 2010. The examiner opined that the Veteran's bilateral midfoot arthritis was less likely as not caused by or a result of his right heel injury incurred while playing baseball in service. His rationale was that the Veteran's baseball injury appears to have been a contusion of his heel, and nowhere in the record was it stated that there was pain or injury to his midfoot where x-rays show his arthritis. He concluded instead, that the Veteran's midfoot arthritis was likely due to his pes planus. He also noted that the fact that the Veteran has bilateral midfoot arthritis further demonstrates that his baseball injury did not cause his midfoot arthritis. He noted further that the bone spur off the calcaneus is seen in the majority of the older population, usually causing no pain, and that the Veteran had documented polyneuropathy, which was also contributing to bilateral foot pain, and was not related to his baseball injury. The examiner did not offer an opinion as to whether the Veteran's left foot disorder is due to or aggravated by his right foot disorder. As noted in the Board's September 2011 remand, the April 2010 examination was found to be incomplete because it did not include a clinical evaluation of orthopedic/neurological disability of the Veteran's feet, or current clinical examination findings with a report of current disability. Furthermore, as noted in the Board's November 2012 remand, the April 2010 VA examiner's opinion was incomplete because the examiner did not offer an opinion as to whether the Veteran's left foot disorder is due to or aggravated by his right foot disorder. For these reasons, the Veteran was scheduled for another VA examination in March 2013. As noted above, evidence of record indicates that the Veteran failed to appear for the March 2013 examination, and he has not provided an explanation for his failure to report or requested that the examination be rescheduled. In the case of an original claim, when a Veteran fails to appear for a scheduled examination, federal regulations state that the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b). Therefore, the case must be decided based on the evidence of record. There is no other medical evidence of record, which indicates that the Veteran's right or left foot disability is related to his active military service. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran's bilateral midfoot arthritis was initially diagnosed several years after the Veteran's discharge from service. The Veteran is competent to report the symptoms of his disabilities; however, it would require medical expertise to say that the current bilateral midfoot arthritis, identified long after service, is the result of a disease or injury in service. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his bilateral foot disability. 38 C.F.R. § 3.159(a)(1),(2) (2012). Finally, as stated above, service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). The Veteran has a current diagnosis of a left foot disability. However, the Board notes that the Veteran has not been granted service connection for his right foot disability or any other disability. Without evidence of a nexus between his current left foot disability and a service-connected disability, service connection on a secondary basis must also be denied. The Veteran is competent to report the symptoms of his disabilities, and he has attributed his current right foot disability to a right foot injury in service, and his left foot disability to his right foot disability. However, it would require medical expertise to say that the right foot disability, identified many years after service, had its onset during or as a result of service, or that his left foot disability, also diagnosed many years after service, was caused or aggravated by his right foot disability. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his right or left foot disabilities. 38 C.F.R. § 3.159(a)(1),(2) (2012); Jandreau, supra. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs