Citation Nr: 1329275	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  06-03 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a left foot 
disability.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for 
additional disability due to a surgical procedure on the 
left foot at the Philadelphia VA Medical Center (VAMC) in 
May 1998.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1976 to January 
1984 with periods of Reserve service between March 1987 and 
May 1990.

This matter initially came before the Board of Veterans' 
Appeals (Board) on appeal from a March 2005 rating decision 
by the RO that declined to reopen the claim of service 
connection for a left foot disability.

In a November 2008 decision, the Board reopened and denied 
the claim.

Thereafter, the Veteran appealed the Board's decision to the 
United States Court of Appeals for Veterans Claims (Court).  
In March 2011, the Court granted the parties' Joint Motion 
for Remand (Joint Motion) and vacated the Board's November 
2008 decision to the extent that the claim for service 
connection was denied only.  The decision to reopen the 
claim, which is favorable to the Veteran, remains in effect.  
A copy of the motion and the Court's Order are incorporated 
into the claims file.

The Joint Motion was based, in part, on a determination that 
the Board failed to address a possible claim for 
compensation for a left foot disability under the provisions 
of 38 U.S.C.A. § 1151.  

In an August 2011 remand, the Board noted that it reviewed 
the JMR, the Veteran's original claim, and a December 2008 
statement submitted in connection with the appeal that 
referenced the May 1998 surgery, and determined that it was 
plausible that, when reading the statements very 
sympathetically, the Veteran could have been attempting to 
obtain compensation due to the 1998 foot surgery.  
Therefore, the Board remanded the claims for further 
development.  After completing the requested development, 
the Appeals Management Center (AMC) continued to deny the 
claim (as reflected in a January 2013 supplemental statement 
of the case (SSOC)) and returned the case to the Board for 
appellate review.

The Board notes that the Veteran requested two separate 90-
day extensions of time in order to obtain and submit 
additional evidence and/or argument in support of his 
appeal.  He was granted both of his requested extensions of 
time; however, he did not submit any additional evidence 
and/or argument in support of his appeal.  Rather, in August 
2013, his representative submitted statements indicating 
that due to his financial status and lack of insurance, he 
was unable to provide the necessary evidence, to 
specifically include a medical opinion from a private 
podiatrist.

In addition to the paper claims file, there are Virtual VA 
and Veterans Benefits Management System (VBMS) paperless 
files associated with the Veteran's case.  A review of the 
documents in the Virtual VA paperless claims file reveals VA 
treatment records that are relevant to the issues on appeal.  
The RO considered those additional treatment records and 
readjudicated the claims in the January 2013 SSOC.  

The issue of entitlement to service connection for a left 
foot disorder is addressed in the REMAND portion of the 
decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran has not been shown to have any additional left 
foot disability as a result of carelessness, negligence, 
lack of proper skill, error in judgment, or similar instance 
of fault on the part of the VA health care providers who 
provided care throughout the course of the left foot surgery 
and his postoperative healing, nor does the evidence show 
that any additional disability was due to an event that was 
not reasonably foreseeable. 


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for a 
left foot disorder have not been met.  38 U.S.C.A. § 1151 
(West 2002 Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361, 
17.32 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 
2000 (VCAA), the United States Department of Veterans 
Affairs (VA) has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 
5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, and 3.326(a).

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant of what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The notice required must be provided to 
the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it must (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; and, (3) inform the claimant about the information 
and evidence the claimant is expected to provide.  38 
U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United 
States Court of Appeals for Veterans Claims (Court) held 
that, upon receipt of an application for a service 
connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 
3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the 
claimant with notice of what information and evidence not 
previously provided, if any, will assist in substantiating, 
or is necessary to substantiate, each of the five elements 
of the claim, including notice of what is required to 
establish service connection and that a disability rating 
and an effective date for the award of benefits will be 
assigned if service connection is awarded. 

In this case, the RO and Appeals Management Center (AMC) 
provided the Veteran with notification letters in December 
2004, March 2006, April 2006, and September 2011.

The Board notes that the March 2006, April 2006, and 
September 2011 letters were not provided prior to the March 
2005 rating decision.  Such errors can be effectively 
"cured" by providing any necessary notice and then 
readjudicating the claim in a statement of the case (SOC) or 
SSOC.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 
2007)(Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 
(2006).  In this case, the AMC, on behalf of the RO, 
readjudicated the claims in a January 2013 SSOC.  
Accordingly, the Board concludes that there is no 
prejudicial error in the timing of the March 2006, April 
2006, and September 2011 letters.  See Shinseki v. Sanders, 
129 S. Ct. 1696 (2009) (reversing prior case law imposing a 
presumption of prejudice on any notice deficiency). 

Moreover, the content of the December 2004 and September 
2011 letters satisfied the notice requirements.  In this 
regard, the December 2004 letter informed the Veteran of the 
information and evidence needed to substantiate his claim 
for service connection and notified him of the division of 
responsibilities in obtaining such evidence.  The September 
2011 letter, in accordance with the August 2011 remand, 
notified the Veteran of the evidence and information needed 
to support his claim for compensation under 38 U.S.C.A. 
§ 1151, to include notice of the "evidence needed to 
substantiate the claim, what evidence and information he is 
responsible for obtaining, and the evidence that is 
considered VA's responsibility to obtain."  Additionally, 
the March 2006, April 2006, and September 2011 letters also 
explained how a disability rating is determined for a 
service-connected disorder and the basis for determining an 
effective date upon the grant of any benefit sought, in 
compliance with Dingess, 19 Vet. App. at 490-491. 

VA also has a duty to assist the Veteran in the development 
of the claim.  This duty includes assisting the Veteran 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.  In this 
case, the RO obtained available service treatment records 
from the Veteran's Army Reserves service, VA outpatient 
treatment records, private treatment records, prison 
treatment records, and an independent medical opinion from a 
VA podiatry surgeon.  The Veteran also submitted private 
medical records and lay statements in support of his claim.  

The Board notes that the Veteran's active duty service 
treatment records have not been obtained, and a formal 
finding has been made as to their unavailability.  
Specifically, in September 1998, the RO requested all of the 
Veteran's service treatment records from the National 
Personnel Records Center (NPRC).  In a subsequent response, 
the NPRC indicated that all available requested records had 
been forwarded.  A review of the record shows that the 
service treatment records forwarded from NPRC pertained to 
the Veteran's Reserve service following his active duty 
service.  The RO submitted follow-up requests in August 1998 
and March 1999; however, NPRC responded that all available 
service treatment records were previously forwarded to the 
RO in November 1998.  In May 1999 correspondence, the 
Veteran was notified that that efforts to obtain his active 
duty service treatment records had failed.  Additionally, in 
February 2009, the Veteran submitted correspondence he 
received from NPRC after he submitted a request for his 
service treatment records.  In its response, NPRC indicated 
that there was no other information located in the Veteran's 
record.  

In cases where the claimant's service records are 
unavailable through no fault of the claimant, there is a 
heightened obligation to assist the claimant in the 
development of his case.  O'Hare v. Derwinski, 1 Vet. App. 
365 (1991).  The heightened duty to assist the claimant in 
developing facts pertinent to his claim in a case where 
service records are presumed destroyed includes the 
obligation to search for alternative medical records and 
alternative sources of evidence to substantiate the claim.  
Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. 
Derwinski, 1 Vet. App. 401 (1991).

The RO has done everything reasonably possible to locate the 
service treatment records and otherwise associate alternate 
source documents with the claims files upon learning the 
service treatment records were unavailable.  As such, the RO 
has satisfied the heightened duties of Dixon, 3 Vet. App. at 
261. 

Additionally, in accordance with the Board's August 2011 
remand directives, the AMC sought to obtain VA treatment 
records associated with the Veteran's 1998 left foot 
surgery.  Specifically, in September 2011, the AMC requested 
VA outpatient treatments records "referable to [the 
Veteran's] left foot disability, to include complete records 
of the 1998 left foot surgery at the Philadelphia VAMC and 
any and all associated consent forms."  Subsequent requests 
were made in December 2011 and February 2012.  In March 2012 
and May 2012, the Philadelphia VAMC responded that there 
were no records responsive to the AMC's request.  In May 
2012, the AMC issued a formal finding of unavailability for 
the Philadelphia VAMC records pertaining to the 1998 left 
foot surgery.  The AMC reported that all efforts to obtain 
the needed information had been exhausted and further 
attempts to obtain the records would be futile.  

As the records have previously been requested and were not 
obtained, a remand solely to request these records would 
only result in further delay of adjudication of the claim 
and would not benefit the Veteran.  Soyini v. Derwinski, 1 
Vet. App. 540, 546 (1991) (strict adherence to requirements 
in the law does not dictate an unquestioning, blind 
adherence in the face of overwhelming evidence in support of 
the result in a particular case; such adherence would result 
in unnecessarily imposing additional burdens on VA with no 
benefit flowing to the claimant). 

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on the claim, as defined by 
law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In August 2011, the Board remanded the Veteran's 38 U.S.C.A. 
§ 1151 claim to the RO to obtain a VA medical opinion to 
determine whether it was at least as likely as not that the 
Veteran had additional left foot disability as a consequence 
of 1) carelessness, negligence, lack of proper skill, error 
in judgment, or a similar instance of fault on the part of 
VA providers; or, 2) an event not reasonably foreseeable.  

In accordance with the remand directives, a VA medical 
opinion was obtained in January 2013.  The examiner provided 
the requested opinions in her report.  Additionally, there 
has been no allegation that the opinion was inadequate.  

VA has further assisted the Veteran and his representative 
throughout the course of this appeal by providing them with 
a Statement of the Case (SOC) and a Supplemental Statement 
of the Case (SSOC), which informed them of the laws and 
regulations relevant to the Veteran's claim.  

Additionally, in the August 2011 remand, the Board noted 
that the parties to the Joint Motion found that it was 
potentially prejudicial for the Board to reopen the claim of 
service connection for a left foot disability and to deny it 
on the merits without providing the Veteran an opportunity 
to submit additional evidence or notice of the need for 
additional evidence.  Therefore, the issue was remanded to 
provide the Veteran that opportunity.  As noted above, the 
Veteran was provided two separate 90-day extensions of time 
to submit additional evidence and/or argument in support of 
his claim; however, he has not submitted any such evidence 
or argument.  He has not made the RO or the Board aware of 
any additional evidence that needs to be obtained in order 
to fairly decide the particular claims on appeal.  He has 
been given ample opportunity to present evidence and 
argument in support of his claim.  

For these reasons, the Board concludes that VA has fulfilled 
the duty to assist the Veteran in this case.  Hence, there 
is no error or issue that precludes the Board from 
addressing the merits of this appeal. 

Laws and Regulations

In a December 2008 statement, the Veteran asserted that his 
left foot condition was worsened by the corrective surgery 
performed at the Philadelphia VAMC in May 1998.  He 
contended that because the surgical procedure was not 
completed by "fusing" his second through fifth toes, he must 
go through constant changes in the way he walks, stands, or 
sits depending on the position of his feet, and his quality 
of life has been negatively impacted.  Additionally, in a 
June 2011 statement, the Veteran stated, "I am...explicitly 
stating that the VA physicians who conducted the surgery 
improperly placed the [second] and [third] digits and this 
constitutes a deviation from the standard care.  I was never 
informed that improper placement was a risk."

Section 1151 compensation is awarded for qualifying 
additional disability in the same manner as if such 
additional disability were service-connected.  The purpose 
of the statute is to award benefits to those Veterans who 
were disabled as a result of VA treatment or vocational 
rehabilitation.  38 U.S.C.A. § 1151(a) (West 2002 and Supp. 
2012).

Prior to the October 1, 1997 amendments, the provisions of 
38 U.S.C.A. § 1151 simply required a causal connection 
between the VA treatment in question and additional 
disability, as there was no issue as to fault or negligence 
on the part of VA. 38 U.S.C.A. § 1151 (West 1991).  This "no 
fault" interpretation of the statute and regulations prior 
to October 1, 1997, was implemented by the United States 
Supreme Court in Brown v. Gardner, 513 U.S. 115 (1994), 
aff'd 5 F.3d 1456 (Fed. Cir. 1993), aff'd Gardner v. 
Derwinski, 1 Vet App. 584 (1991). 

However, effective October 1, 1997, the United States 
Congress amended § 1151.  The amendment rescinded the "no 
fault" requirement.  See Pub. L. No. 104-204, § 422(a), 110 
Stat. 2926 (September 26, 1996), codified at 38 U.S.C.A. § 
1151 (West 2002). 

Effective September 2, 2004, the regulation implementing the 
provisions of 38 U.S.C.A. § 1151 also changed.  Such claims 
previously were adjudicated under 38 C.F.R. § 3.358.  
However, VA subsequently promulgated a new regulation, 
38 C.F.R. § 3.361, to implement the provisions of the 
revised statute.  This regulation is applicable to claims 
for compensation benefit pursuant to 38 U.S.C.A. § 1151 
filed on or after October 1, 1997.  See 69 Fed. Reg. 46,426 
(Aug. 3, 2004). 

The Veteran's petition to reopen his claim of service 
connection for a left foot disability was received in 
December 2008.  The earliest indication that the Veteran 
sought compensation pursuant to 38 U.S.C.A. § 1151 was 
received in December 2008.  Prior to his December 2008 
statement, he asserted that he injured his left foot as a 
result of constant physical training while wearing Army 
issued combat boots.  In his December 2008 statement, the 
Veteran reported that his left foot problems continued 
through the years until he "finally decided to have the 
corrective surgery needed and suggested by the VA hospital."  
He asserted, "[A]s a result of that surgery for corrective 
action, [my condition] has worsened... further[] because the 
surgery procedure was not completed by 'fusing' my toes."  
As such, the most recent amended version of § 1151, 
requiring a showing of VA negligence or fault, is 
applicable.  See 38 C.F.R. § 3.361(a) (provides that the 
amended regulation applies to claims received by VA on or 
after October 1, 1997); VAOPGCPREC 40-97 (stating that all § 
1151 claims which were filed after October 1, 1997, must be 
adjudicated under the statutory provisions currently in 
effect, which essentially require a showing of negligence or 
fault on the part of VA).  In the January 2013 SSOC, the RO 
correctly applied the provisions of the amended 38 U.S.C.A. 
§ 1151 and also listed the provisions 38 C.F.R. § 3.361. 

For purposes of establishing entitlement to section 1151 
benefits, a disability or death is a qualifying additional 
disability or qualifying death if the disability or death:

(1) was not the result of the Veteran's willful 
misconduct; and

(2) the disability or death was caused by hospital 
care, medical or surgical treatment, or examination 
furnished the Veteran under any law administered by the 
Secretary, either by a Department employee or in a 
Department facility as defined in section 1701(3)(A) of 
this title, and the proximate cause of the disability 
or death was-

(A) carelessness, negligence, lack of proper 
skill, error in judgment, or similar instance of 
fault on the part of the Department in furnishing 
the hospital care, medical or surgical treatment, 
or examination; or

(B) an event not reasonably foreseeable.

38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361(a)-(d). 

As to the causation element, additional disability must be 
caused by hospital care, medical or surgical treatment, or 
examination furnished the veteran by VA.  38 C.F.R. § 
3.361(c).  Merely showing that a veteran received care, 
treatment, or examination and that the veteran has an 
additional disability does not establish cause.  38 C.F.R. § 
3.361(c)(1).  In order for additional disability to be 
compensable under 38 U.S.C.A. § 1151, the additional 
disability must have been actually caused by, and not merely 
coincidental to, hospital care, medical or surgical 
treatment, or medical examination furnished by a VA employee 
or in a VA facility.  38 C.F.R. § 3.361(c)(1); Loving v. 
Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. 
Brown, 5 Vet. App. 503, 505 (1993).  That is, the additional 
disability must have been the result of injury that was part 
of the natural sequence of cause and effect flowing directly 
from the actual provision of "hospital care, medical or 
surgical treatment, or examination" furnished by VA and that 
such additional disability was directly caused by that VA 
activity.  Loving, 19 Vet. App. at 101. 

The Court has also recently held that for claims under 38 
U.S.C. 1151(a) received by VA on or after October 1, 1997, 
the mere fact that a claimant is harmed by an event that 
occurs coincidentally with VA hospital care, medical or 
surgical treatment, or an examination is not sufficient to 
establish causation.  Mangham v. Shinseki, 23 Vet. App. 284, 
287 (2009).  The Court noted that a plain reading of the 
statute precluded the conclusion that domiciliary care is a 
component of hospital care.  That is, domiciliary care 
should not be considered as contemplated by section 1151.  
The Court further found that "it is clear that the operative 
issue is not whether the appellant was housed in a VA care 
facility or whether domiciliary care qualifies under § 1151 
as 'medical treatment,' but whether VA's direct actions 
caused his harm."  Id. at 289. 

Factual Background and Analysis

The Veteran contends that he sustained an additional left 
foot disability as the result of a May 1998 left foot 
bunionectomy and arthroplasties of the second through fifth 
toes performed at the Philadelphia VAMC.

Post-service VA radiographic reports pertaining to the left 
foot, prior to the May 1998 surgery, were associated with 
the record.  February 1996 VA x-rays of the left foot showed 
no definite osteomyelitis or other significant bony 
abnormalities.  There was moderate soft tissue swelling 
noted around the first metatarsal phalangeal joint from 
bunion formation.

July 1997 VA x-rays of the left foot showed no evidence of a 
fracture or radiographic evidence of gout.  There were 
hallux valgus and hammertoe deformities of the left foot.  
There were no other significant abnormalities.  The 
interpreter stated that he saw no evidence of fracture or 
gouty arthropathy.

April 1998 VA x-rays of the left foot showed moderate bony 
formation of the first metatarsophalangeal joint with some 
associated sclerorsis and osteophyte formation in the margin 
of the joint.  There were no essential interval changes 
since 1994.  There was some hammertoe deformity of the 
second and third toes.  There was no other definite 
abnormality noted in the bones and joints.

VA treatment notes dated from May 1998 to September 1998 
reference a left foot bunionectomy and arthroplasty of his 
toes.  As noted above, the May 1998 surgical reports and 
consent forms are unavailable; however, post-operative VA 
treatment notes have been associated with the record.

May 1998 VA x-rays of the left foot, status post 
bunionectomy, showed postoperative changes.  The 
interpreting physician noted that a bunionectomy had been 
performed with an osteotomy through the first metatarsal 
which was traversed by a right-angle pin.  Osteotomies 
involving all of the proximal interphalangeal joints were 
also demonstrated.

A May 1998 VA treatment note indicated that one week status 
post bunionectomy and hammertoe surgery, the Veteran's left 
foot showed forefoot edema.  The incision site over toes one 
to three was bleeding.  All sutures were intact and there 
was no drainage or odor.  The toes were red and warm.  The 
surgical pin was intact and there was no drainage or signs 
of infection.  

A May 1998 two week post-operative VA treatment note 
documented that he had an Austin osteotomy for hallux valgus 
correction and hammertoe arthroplasty for digits two through 
five.  The notes also showed that a Kirschner wire or pin 
was implanted in his foot.  An examination revealed the left 
foot was warm in the distal region.  There was edema in the 
mid-foot distal region.  Incisions over the dorsal first 
metatarsal and digits two through five were healing slowly.  
There was no drainage.  The pin and cap remained in place.  
All digits were aligned and tender to palpation.  Eight 
sutures were removed from the distal toes and hallux.  The 
incisions were cleaned and redressed with new dressings.

A May 1998 three week post-operative VA treatment note 
indicated that the incisions of hallux at the proximal 
portion was open with mild sanguineous drainage and no 
cellutis, odor, or sign of infection.  The digital incisions 
had intact sutures.  The Veteran was able to move his hallux 
slightly and he had pain with passive range of motion.  The 
remaining sutures were removed, cleaned, medicated, and 
redressed.

A May 1998 four week post-operative VA treatment note showed 
the Veteran's left foot remained edemous, especially at the 
site of the pin, which was buried under the skin.  The 
examiner noted that x-rays showed good alignment and the 
osteotomy was filling in with some lucency at the base of 
the phalanx.  The Veteran's dressings were changed.

In a June 1998 VA treatment note, the Veteran expressed 
concern about the sutures remaining in his left foot.  The 
examiner noted one suture remained in the incision site.  
The incision was cleansed and the remaining stitch was 
removed.

June 1998 VA x-rays of the left foot showed the 
intramedullary pin was removed from the first metatarsal and 
there was marked soft tissue swelling around the metatarsal 
region.  The interpreting physician noted that there was 
"persistent, marked sort-tissue swelling around the 
metatarsal region, probably from surgery or infection to be 
excluded clinically."

A June 1998 VA treatment note indicated that the Veteran had 
edema in the left forefoot, midfoot, and ankle regions.  The 
examiner noted that x-rays showed the beginning of hallux 
valgus.  

In a July 1998 three month post-operative VA treatment note, 
the examiner noted the left foot wound edges were coapted.  
There was edema and calor at the left first 
metatarsophalangeal joint.  Additionally, the Veteran 
complained of feeling "pins and needles" in his left first 
metatarsalphalangeal joint.  The diagnosis was hallux varus 
of the left foot and a bunion splint was dispensed for the 
left foot.

July 1998 VA x-rays of the left foot showed a hallux valgus 
correction with osteotmies through the proximal 
interphalangeal joints of the second, third, fourth, and 
fifth digits.  The interpreting physician noted soft tissue 
swelling about the operative site around the fifth 
metatarsal and indicated that a soft tissue infection cannot 
be excluded.

In an August 1998 VA treatment note, an emergency room 
examiner noted that the Veteran presented with pain in the 
region of his left foot operative site.  He indicated that 
he was jogging and heard a "crack."  He reported increasing 
pain and swelling in the first three toes of his left foot.  
The examiner referred the Veteran for a podiatry evaluation 
and indicated that the Veteran had fractured his toes in his 
left foot.  

August 1998 VA x-rays showed surgical changes involving the 
first metatarsal with osteotomy and partial union.  There 
was a moderate irregularity of the cortex with associated 
soft tissue swelling "probably representative of involvement 
of osteomyelitis."  There was also resection of the second, 
third, fourth, and fifth proximal interphalangeal joints in 
good alignment.  There were no other definite abnormalities 
noted in the bones and joints except moderate to marked soft 
tissue swelling of the tarsometatarsal region.

Another August 1998 VA emergency room note documented a 
history of a bunionectomy, and an x-ray showed "post 
surgical resection of distal mid phalanx #2-5 and 
significant softy tissue swelling."  The diagnosis was a 
soft tissue injury.  The Veteran was instructed to follow-up 
with the orthopedic clinic in one week.  

A review of the record shows no evidence indicating that the 
Veteran followed up with the orthopedic clinic.

During VA treatment in September 1998, the Veteran reported 
that he aggravated his left foot symptoms of pain and 
swelling while doing assigned work from the Impact Services 
Homebase Program.  He indicated that the work involved 
standing in water.  

In an October 1998 VA treatment note, the Veteran complained 
of sharp pain and swelling in his left foot since his May 
1998 bunion and hammertoes surgery.  He reported that the 
pain and swelling increased with weight bearing.  He noted 
decreased mobility of his toes and an inability to stand for 
any length of time.  He stated that he could ambulate two to 
four blocks without an assistive device, but he had pain and 
required rest.  He stated that he was able to slowly ascend 
and descend stairs with difficulty.  An examination of the 
left foot revealed healed surgical incisions of the 
metatarsal joints of digits one through four, swelling of 
the toes, no redness, marked sensitivity to touch, and an 
inability to flex or extend the toes.  The physician's 
impression was to rule out reflex sympathetic dystrophy.

October 1998 x-rays of the left foot showed changes of 
bunionectomy at the first metatarsophalangeal joint, a 
degree of sclerosis about the first metatarsal head, and 
multiple osteotomies involving the second, third, fourth, 
and fifth proximal interphalangeal joints.

In a November 1998 VA orthopedic consultation report, the 
Veteran complained of swelling and severe pain in his left 
foot following a May 1998 surgery for a bunion and 
hammertoes.  On examination, his skin temperature was warm 
from his tibia to his toes, bilaterally.  Monofilament 
sensation was diminished in his left foot.  There was edema 
of the digits on the left foot.  X-rays showed evidence that 
bone was removed from the base of the proximal phalanx of 
digits two through five on the left foot.  There was a 
cortical disruption of the first metatarsal head on the left 
foot.  There was also soft tissue swelling of the digits on 
the left foot.  The diagnoses were tyloma, metatarsalgia, 
and xerosis cutis.

A November 1998 VA x-ray of the left foot revealed the 
following:

There is deformity of the distal portion 
of the first metatarsal compatible with 
evidence of a previous bunionectomy 
possibly in conjunction with a healed 
osteotomy.  There is deformity of the 
subarticular portion of the first 
metatarsal head with small cystic-like 
areas of decalcification, findings which 
appear to be of longstanding duration 
attributed to previous surgery and/or 
trauma.  Narrowing of the first 
[metatarsophalangeal] joint space is 
noted.  There is a minor hypertrophic 
change demonstrated at the base of the 
proximal phalanx of the great toe.  
Elsewhere, there is evidence of partial 
ostectomies of the bony structures 
comprising the proximal interphalangeal 
joints of the second through fifth 
digits.  Soft tissues of the proximal 
portion of the second digit are 
relatively full in outline.  There are 
no other remarkable findings.

In a November 1998 VA podiatry note, the Veteran reported 
that his left great toe was "not really any better yet."  He 
was participating in physical therapy and taking over-the-
counter pain killers, but it continued to swell.  On 
examination, the first metatarsophalangeal joint on the left 
side was moderately painful to palpation and was very 
painful to dorsal or plantar movement.  The examining 
physician noted that a review of recent x-rays showed that 
the base of the proximal phalanx was wider than the head, 
and there was significant narrowing of the joint space.  He 
also noted that there were several small, punched-out 
lesions in the head of the first metatarsal.  The diagnosis 
was degenerative joint disease of the first 
metatarsophalangeal joint.  He noted that the punched-out 
lesions may be consistent with gout, but the Veteran denied 
any history of such.

In a January 1999 VA podiatry note, the Veteran indicated 
that he continued to have pain since his May 1998 surgery.  
He reported that the pain increased with activity and he was 
no longer able to play sports.  An examination revealed 
hallux and digits two and three of the left foot had well-
healed scars from surgery and the areas were painful to 
palpation.  There was no erythema or increased temperature.  
The diagnosis was probable reflex sympathetic dystrophy.

A February 2002 private x-ray of the left foot, taken while 
the Veteran was imprisoned, showed "degenerative changes of 
the [metatarsophalangeal] joint space of the left great toe 
as well as extensive arthritic changes of the [proximal 
interphalangeal] joint space of the [second] through [fifth] 
toes" and degenerative changes at the base of the 
metatarsals.  There was no evidence of acute osteomyelitis 
or acute fracture.  

In a September 2003 VA emergency room note, the Veteran 
complained of left foot pain and swelling.  The examiner 
noted that he had a history of bunion and second and third 
toe surgery approximately five years ago.  The diagnosis was 
left toes and foot pain due to arthritis.
 
September 2003 VA x-rays of the left foot showed moderate 
sclerosis and osteophyte formation and narrowing of the 
joint space of the first metatarsal phalangeal joint from 
degenerative changes and previous surgery.  There was a 
resection of the second through fifth proximal 
interphalangeal joints with adequate regeneration.  There 
were no other bony abnormalities or joint changes.

In an October 2003 VA podiatry treatment note, the Veteran 
complained of swelling and pain in his left foot and second 
and third toes.  He indicated that in the past three months, 
he had pain and occasional swelling and deformity in his 
second and third toes on the left foot.  The examining 
podiatry resident noted that a September 2003 VA emergency 
room x-ray showed "improper positioning" of the second and 
third toes.  He noted that the toes looked "laterally 
dislocated" in the interphalangeal joints.  An arthrodesis 
was scheduled in November 2003.  

In an October 2003 VA addendum note, a podiatrist noted that 
she was physically present for the podiatry resident's 
evaluation of the Veteran.  She noted that his note was an 
accurate assessment of the encounter.  She noted that she 
reviewed the x-rays with the resident which showed 
degenerative joint disease of the first metatarsal 
phalangeal joint with slight hallux varus, and that digits 
two through five showed evidence of prior bone resection 
with uneven levels of regrowth at the phalangeal heads.

A review of the record shows no evidence indicating that the 
Veteran underwent an arthrodesis in November 2003.

During VA treatment in January 2004, the Veteran indicated 
that as a result of his 1998 surgery to remove a bunion and 
several toes in his left foot, he had constant pain that 
varied with the weather and stress.  He related that his 
pain typically averaged approximately seven to eight on a 
one to ten intensity scale with the highest number for the 
most intense pain.  He stated that, at times, his pain 
intensified to a ten in severity.

January 2004 VA emergency room notes documented the 
Veteran's complaints of pain and swelling in the second and 
third toes of his left foot for five years.  The examining 
physician noted a second and third toe deformity in the left 
foot.  He noted that the Veteran needed a primary care 
provider and a referral to podiatry.  

In a January 2004 homeless outreach note, the Veteran 
inquired about the availability of a bed in the domiciliary 
program.  In an addendum note, dated three days later, the 
author of the previous note indicated that the Veteran's 
domiciliary program might not be equipped to handle the 
Veteran's recuperation from a recommended podiatry surgery 
in February 2004.  He indicated that the Veteran stated he 
was willing to forego the surgery to enter the domiciliary 
program.

A review of the record shows no evidence indicating that the 
Veteran underwent podiatry surgery in February 2004.  
Rather, in a February 2004 VA podiatry consultation, the 
examining physician noted that the Veteran was scheduled for 
surgery at the Philadelphia VAMC, but he was admitted into 
the domiciliary program for substance abuse treatment at the 
Coatesville VAMC; therefore, he did not undergo podiatry 
surgery in February 2004.

March 2004 VA left foot x-rays revealed status post 
bunionectomy with surgical excision of the medial first 
metatarsal head with narrowing at the first metatarsal 
phalangeal joint space and spur formation compatible with 
moderate degenerative changes.  There were arthroplasties of 
the second and fifth digits, subluxation of the middle 
phalanx at the proximal interphalangeal joint of the second 
digit, and a deformity of the third toe.

In June 2004 and July 2004 prison treatment notes, the 
Veteran complained of left foot pain.  He reported a history 
of bunionecotmy and arthoplasty surgery in 1996.  He 
indicated that he had chronic pain and episodes of 
inflammation.  The diagnoses were degenerative joint disease 
and arthritis.

September 2004 VA x-ray findings of the left foot revealed, 
"Status post bunionectomy, first metatarsal head with 
degenerative changes, first metatarsal phalangeal joint.  
Arthroplasties of the second and fifth digits.  Deformity of 
the third toe."

In an October 2004 prison treatment note, the Veteran 
reported that he had "no bones" in his left toes for eight 
years (or since 1996).  The examiner noted that he had a 
history of hammertoes.  The Veteran reported that he had 
left foot pain "all the time."

In a November 2004 prison treatment note, the Veteran 
requested a podiatry consultation.  He stated that he had 
"no bones" in his left foot and decreased range of motion in 
his toes.  The examiner noted he had a history of a left 
foot deformity.

January 2006 VA x-rays of the left foot showed moderate 
osteophyte formation with some irregularity of the joint 
surfaces and narrowing of the joint space representative of 
degenerative changes.  There was resection of the second, 
third, and fifth proximal interphalangeal joints with some 
degenerative changes.  There were also some degenerative 
changes involving the base of the first proximal phalanx and 
metatarsal joint.  There were no definite bony 
abnormalities.

In an April 2006 prison treatment note, the Veteran 
complained of bilateral foot pain.  The diagnoses were 
bilateral plantar calluses and arthritis or bilateral foot 
pain from a surgical repair of the left foot.

In an April 2007 prison treatment note, the Veteran 
complained of left foot pain.  He requested soft shoes due 
to a history of a bunionectomy in 1998.  An examination of 
the left foot showed surgical scars from the first through 
third toes and mild swelling.  The diagnosis was left foot 
pain and he was provided a soft shoe pass.

A May 2007 private x-ray of the left foot, taken while the 
Veteran was imprisoned, demonstrated "distinct degenerative 
change[s] involving the first [metatarsophalangeal] joint"; 
"over-hanging edges with spur formation about the joint 
space which is narrowed and demonstrates diffuse bony 
sclerosis that likely represents an element of healing of an 
old fracture"; "flexion deformities of all toes with chronic 
appearing subluxation and degenerative change about the 
second and third [proximal interphalangeal] joints"; and 
"some deformity of the distal fibular shaft likely related 
to an old injury that is healed."  The interpreter noted 
that there was no evidence of an acute fracture; however, 
the Veteran's history "suggests multiple[] injuries which 
now are demonstrated by evidence of healing and degenerative 
change."  

In an April 2008 prison orthopedic treatment note, the 
Veteran reported a history of hammertoes and bunions, status 
post bunionectomy.  He denied any current complaints.  An 
examination of the left foot was normal.  The physician 
noted that the Veteran's osteochondropathy had resolved.

In November 2008, December 2008, and January 2009 prison 
treatment notes, the Veteran complained of left foot pain 
for over five years.  Specifically, he noted pain in the 
left first and third toes, a weeping or leaking knot or cyst 
at the first joint on his big toe, tender spots between the 
third and fourth toes, and pain over the metatarsophalangeal 
joint.

A February 2009 private x-ray of the left foot, taken while 
the Veteran was imprisoned, showed a moderate bunion 
deformity with marked osteoarthritis of the first 
metatarsophalangeal joint, mild hammer toe deformities, and 
mild subluxation of the second and third toes at the 
proximal interphalangeal joints.

A March 2011 private x-ray of the left foot showed severe 
degenerative joint disease at the first metatarsophalangeal 
joint and chronic dislocations or subluxations at the 
proximal interphalangeal joints of the second and third 
toes.

In a June 2011 statement, the Veteran contended, "I 
am...explicitly stating that the VA physicians who conducted 
the surgery improperly placed the [second] and [third] 
digits and this constitutes a deviation from the standard 
care.  I was never informed that improper placement was a 
risk."

In a statement received by VA in August 2011, the Veteran's 
brother reported that he had "witnessed the steady decline 
in [the Veteran's] condition...over the years since the 
Philadelphia VAMC performed surgery on [his] left foot."  He 
indicated that he saw changes in the Veteran's quality of 
life; specifically, the Veteran had to walk with the 
assistance of a cane, he required medications to alleviate 
the pain from his left foot, he lost jobs due to the 
"improperly positioned toes" of his left foot, and he had 
difficulty purchasing footwear.  He noted that the Veteran 
was a mechanic and the trade required him to wear safety 
shoes, but his left foot condition prevented him from 
wearing safety shoes.  He also indicated that the Veteran's 
left foot would swell and become "distorted looking."  He 
stated that the Veteran's toe nails would turn black and 
become painful to the point where the Veteran was unable to 
walk until the nails fell off.  He also reported, "When I 
saw [the Veteran] in service[,] I knew something was wrong 
with his walk, but from what I've been witnessing over the 
years[,] I know for sure ever since the Philadelphia VAMC 
surgery[,] [the Veteran] hasn't improved[.]  [I]t's been a 
steady decline in his condition."

In a statement received by VA in May 2012, the Veteran 
reported that his second and third digits were improperly 
placed during the May 1998 surgical procedure.

In a January 2013 VA medical opinion, the authoring 
physician noted that the Veteran underwent an Austin 
bunionectomy of the left great toe with arthroplasties of 
the second through fifth proximal interphalangeal joints of 
the left foot in May 1998.  Based on her review of the 
claims file, she provided the following opinion:

It is AS LEAST AS LIKELY AS NOT 
(emphasis provided) that the VA hospital 
and professional staff of physicians and 
health care workers provided skilled, 
consciences (sic) and appropriate care 
throughout the Veteran's course of foot 
surgery and his postoperative healing 
process.  My comprehensive review of the 
clinical chart, CAPRI and radiographs, 
found it less likely than not that there 
was any evidence to support additional 
left foot disability as a consequence of 
1) carelessness, negligence, lack of 
proper skill, error in judgment or a 
similar instance of fault on the part of 
the VA providers; or 2) an event not 
reasonably foreseeable.  In my opinion, 
the VA and all medical health care 
providers performed with the utmost 
professionalism, care and skill 
necessary for the treatment of this 
complicated reconstructive surgery.

The VA physician noted that her comprehensive review of the 
postoperative clinical record, to include seven weeks of 
consecutive podiatric care, indicated that the postoperative 
course was "uncomplicated and without incidents."  She 
indicated that early stages of healing, wound care, and 
radiographs progressed normally, and the postoperative notes 
did not indicate any problems with the surgical procedure or 
immediate recovery care.  She noted that there was residual 
swelling and edema of the left foot six weeks after the 
surgery, but "these clinical observations were consistent 
with the complexity of the procedures."  She indicated that 
swelling and edema resolved slower than bone healing.  She 
also noted that incision healing and bone healing appeared 
normal, and she stated that surgical care was taken to 
preserve the neurovascular integrity of the toes, skin, and 
foot.

The Board notes that the determinative issue in this case is 
whether the Veteran had additional disability due to the May 
1998 surgical procedure on the left foot at the Philadelphia 
VAMC.  38 C.F.R. § 3.361(c).

As noted above, in order for a claim pursuant to 38 U.S.C.A. 
§ 1151 to be granted, it must be determined that an 
additional disability occurred as a result of carelessness, 
negligence, lack of proper skill, error in judgment, or 
similar instance of fault on VA.  Pursuant to 38 C.F.R. § 
3.361, this can be shown by establishing that VA treatment 
proximately caused additional disability, and that (1) VA 
failed to exercise the degree of care that would be expected 
of a reasonable health care provider; or (2) VA furnished 
the hospital care, medical or surgical treatment, or 
examination without the Veteran's informed consent. 

On the underlying question of whether the Veteran has any 
additional disability as a consequence of the May 1998 left 
foot surgery, the January 2013 VA examiner In a January 2013 
VA medical opinion, the authoring physician opined that it 
was as least as likely as not that the VA hospital and 
professional staff of physicians and health care workers 
provided skilled and appropriate care throughout the 
Veteran's course of foot surgery and his postoperative 
healing process.  Further, she opined that the VA and all 
medical health care providers "performed with the utmost 
professionalism, care and skill necessary for the treatment 
of this complicated reconstructive surgery."  She noted that 
her comprehensive review of the clinical chart, electronic 
VA treatment records, and VA radiographs, found it less 
likely than not that there was any evidence to support 
additional left foot disability as a consequence of 
1) carelessness, negligence, lack of proper skill, error in 
judgment or a similar instance of fault on the part of the 
VA providers; or 2) an event not reasonably foreseeable.  

Although the Veteran is competent to describe symptoms, such 
as pain, he contends that he incurred additional disability 
because the surgical procedure was not completed by "fusing" 
his second through fifth toes (see December 2008 statement) 
and/or the VA physicians who conducted the surgery 
improperly placed the second and third digits (see June 2011 
statement).  He asserted that the improper placement 
constituted a "deviation from the standard of care."  Id.  
Additionally, he stated that he was never informed that 
improper placement was a risk.  Id.  The Board notes that 
the Veteran's brother has also provided statements attesting 
to his observation of the Veteran's left foot difficulty 
following his May 1998 left foot surgery at the Philadelphia 
VAMC.  See August 2011 statement.

Under certain circumstances, a lay person is competent to 
offer an opinion on a simple medical condition, a 
contemporaneous medical diagnosis, or symptoms that later 
support a diagnosis by a medical professional.  Davidson v. 
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) 
(noting, in a footnote, that sometimes a lay person will be 
competent to identify the condition where the condition is 
simple, for example a broken leg, and sometimes not, for 
example, a form of cancer)).  Competency is a question of 
fact, which is to be addressed by the Board.  Jandreau at 
1377. 

Competent lay evidence means any evidence not requiring that 
the proponent have specialized education, training, or 
experience.  Lay evidence is competent if it is provided by 
a person who has knowledge of facts or circumstances and 
conveys matters that can be observed and described by a lay 
person.  38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 
469 (1994) (A witness must have personal knowledge in order 
to be competent to testify to a matter; personal knowledge 
is that which comes to the witness through the use of the 
senses.).

Whether the Veteran has a current disability due to fault on 
the part of VA cannot be determined by the Veteran's own 
personal knowledge, that is, perceived through the use of 
his senses.  38 C.F.R. § 3.159; Layno at 469 (a witness must 
have personal knowledge in order to be competent to testify 
to a matter; personal knowledge is that which comes to the 
witness through the use of the senses).  Likewise, the 
Veteran's brother cannot determine whether the Veteran has a 
current disability due to fault on the part of VA through 
his personal observations.

It is not argued or shown that the Veteran is qualified 
through specialized, education, training, or experience in 
health care to offer an opinion on whether he has additional 
disabilities due to the May 1998 foot surgery, or on the 
standard of care of a reasonable health care provider, which 
are factors in determining entitlement to disability 
compensation under 38 U.S.C.A. § 1151.  Indeed, the issues 
on appeal involve complex medical matters.  For these 
reasons, the Board rejects the Veteran's lay opinion as 
competent evidence to substantiate the claim on the question 
of current additional disabilities due to the May 1998 foot 
surgery.  As the Board does not find the Veteran to be 
competent on these matters, the determination of whether his 
statements are credible is not reached. 

The VA physician who provided the January 2013 medical 
opinion, concluded that there is no evidence of 
carelessness, negligence, lack of proper skill, error in 
judgment, or similar instance of fault on the part of the 
attending VA personnel.  She noted that her comprehensive 
review of the postoperative clinical record, to include 
seven weeks of consecutive podiatric care, indicated that 
the postoperative course was "uncomplicated and without 
incidents."  

As the VA physician is qualified through education, 
training, and experience to offer an opinion on the standard 
of care provided by VA during the Veteran's left foot 
surgery in May 1998 and postoperative care, the Board finds 
her opinion pertaining to this matter, which is 
uncontroverted by the other evidence of record, to be more 
probative than the Veteran's opinion.  As discussed at 
length above, the weight of the evidence shows that the 
Veteran currently has no such additional disabilities. 

The Board acknowledges the Veteran's assertions that he was 
not informed of the risks of improper placement of the 
digits in the arthroplasty of digits two through five of his 
left foot.  As noted above, the May 1998 operative reports 
and consent forms are unavailable.  However, postoperative 
VA treatment records suggest that the digits were properly 
placed.  Specifically, August 1998 VA x-rays showed that the 
second, third, fourth, and fifth proximal interphalangeal 
joints were in "good alignment."  The Board notes that in an 
October 2003 VA podiatry treatment note, a podiatry resident 
noted that a September 2003 VA emergency room x-ray showed 
"improper positioning" of the second and third toes, and he 
noted that the toes looked "laterally dislocated" in the 
interphalangeal joints.  However, in an October 2003 VA 
addendum note, a VA podiatrist noted that she reviewed the 
September 2003 x-ray with the resident.  She noted that the 
x-ray showed that digits two through five showed evidence of 
prior bone resection with uneven levels of regrowth at the 
phalangeal heads.  Additionally, the Board's review of the 
September 2003 VA x-ray report showed there was a resection 
of the second through fifth proximal interphalangeal joints 
with adequate regeneration.  

The Board finds the Veteran's assertion that the VA 
physicians who performed the arthroplasty procedure 
improperly aligned digits two through five in his left foot 
to be without merit.  In fact, in a May 1998 four week post-
operative VA treatment note, the examiner noted that x-rays 
showed "good alignment" and the osteotomy was filling in 
with some lucency at the base of the phalanx.  Additionally, 
the VA physician who provided the January 2013 medical 
opinion indicated that early stages of healing, wound care, 
and radiographs progressed normally, and the postoperative 
notes did not indicate any problems with the surgical 
procedure or immediate recovery care.  She noted that there 
was residual swelling and edema of the left foot six weeks 
after the surgery, but "these clinical observations were 
consistent with the complexity of the procedures."  She 
indicated that swelling and edema resolved slower than bone 
healing.  She also noted that incision healing and bone 
healing appeared normal, and she stated that surgical care 
was taken to preserve the neurovascular integrity of the 
toes, skin, and foot.

The Board is sympathetic to the Veteran's health problems.  
However, the most probative medical evidence of record is 
against a finding that any additional left foot disability 
was a result of carelessness, negligence, lack of proper 
skill, error in judgment, or similar instance of fault on 
the part of the VA health care providers who provided left 
foot surgery in May 1998 or postoperative care, nor does the 
evidence show that there is any additional disability due to 
an event that was not reasonably foreseeable.  Thus, the 
Board finds that the preponderance of the evidence is 
against the claim, and the doctrine of reasonable doubt is 
not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102.


ORDER

Entitlement to compensation under the provisions of 38 
U.S.C.A. § 1151 for additional disability due to a surgical 
procedure on the left foot at the Philadelphia VAMC in May 
1998 is denied.





REMAND

In this case, the Veteran contends that his current left 
foot disorder is a result of an injury to his left foot 
during active duty service.  Specifically, in a December 
2008 statement, he indicated that he injured his foot during 
physical training while wearing Army issued combat boots 
over the span of his active duty service.  In the same 
statement, he also claimed that he may have had a 
preexisting condition which was aggravated and permanently 
worsened during his active duty service.  Since 1996, VA 
treatment records and prison treatment records show that the 
Veteran has sought treatment with complaints of left foot 
pain. 

In an April 2005 statement, the Veteran reported that he 
presented to sick call many times during active duty for 
treatment of hammertoes and a bunion on his left foot.  
Specifically, he contended that he had foot problems during 
service between May 1976 and January 1984.  In his August 
1998 claim, he indicated that he was treated for a left foot 
injury in approximately 1977 or 1978 in Panama, and from 
1981 to 1984 in Germany.  

However, as discussed above, the Veteran's active duty 
service treatment records are unavailable.  Accordingly, 
there is no contemporaneous evidence demonstrating that the 
Veteran injured and received treatment for his left foot 
while in service.  Significantly, however, the Veteran is 
competent to report that he experienced left foot pain while 
in service.  The Veteran is also competent to describe his 
current symptoms, including the continuity of his left foot 
pain since service.  See Layno v. Brown, 6 Vet. App. 465, 
470 (1994) (holding that the Veteran is competent to report 
symptoms because this requires only personal knowledge, not 
medical expertise, as it comes to him through his senses). 

VA has a heightened duty to assist the Veteran where service 
records are unavailable.  See O'Hare v. Derwinski, 1 Vet. 
App. 365, 367 (1991).  As part of the duty to assist a 
Veteran in developing the facts and evidence concerning a 
service connection claim, VA must provide an examination for 
a medical nexus opinion when there is: (1) competent 
evidence of a current disability or persistent or recurrent 
symptoms of a disability; (2) evidence establishing that an 
event, injury, or disease occurred in service or 
establishing certain diseases manifested during an 
applicable presumptive period for which he qualifies; and 
(3) an indication that the disability or persistent or 
recurrent symptoms of a disability may be associated with 
his service or a service-connected disability; but (4) 
insufficient competent medical evidence on file for VA to 
make a decision on the claim.  McLendon v. Nicholson, 20 
Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 
C.F.R. § 3.159(c)(4).

The Veteran has a current diagnosis of degenerative joint 
disease and is competent to report experiencing left foot 
pain in service and since separation.  However, it is 
unclear whether the current diagnosis is related to the 
Veteran's military service; or whether he had a preexisting 
left foot disorder, and if so, whether there was an increase 
in the preexisting disability during service.  If the 
evidence reflects such an increase, the examiner should 
indicate whether any increase was due to the natural 
progression of the disorder or whether it represented a 
chronic worsening of the underlying pathology.  Therefore, 
the Board must obtain a medical opinion before adjudicating 
this claim.  See McLendon v. Nicholson, 20 Vet. App. 79 
(2006); 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain copies of all 
relevant VA treatment records dated from 
January 2006 to the present.  Such records 
must either be printed and associated with 
the Veteran's paper claims file or 
uploaded into the Veteran's electronic 
files contained in the Virtual VA or VBMS 
systems. 

2.  After the foregoing development has 
been completed, the RO/AMC should schedule 
the Veteran for a VA examination to 
determine the nature and etiology of any 
left foot disorder that may be present.  
The entire claims file (i.e., both the 
paper claims file and any medical records 
contained in Virtual VA and VBMS) should 
be made available to and be reviewed by 
the examiner in conjunction with the 
examination, and the examiner should 
confirm that such records were available 
for review.  If the examiner does not have 
access to Virtual VA and/or VBMS, any 
relevant treatment records contained in 
Virtual VA and/or VBMS must be printed and 
associated with the paper claims file so 
they can be available to the examiner for 
review. 

It should be noted that the Veteran's 
service treatment records for his period 
of active duty service from May 1976 to 
January 1984 are unavailable.

The examiner should identify all current 
left foot disorders and render a 
diagnosis.  

The examiner should state whether the 
Veteran had a left foot disorder that 
clearly and unmistakably preexisted 
service. 

If the examiner determines that a left 
foot disorder preexisted service, he or 
she should state whether there was an 
increase in the disability during service.  
If the evidence reflects such an increase, 
the examiner should indicate whether any 
increase was due to the natural 
progression of the disorder or whether it 
represented a chronic worsening of the 
underlying pathology.

For any current diagnosis of left foot 
disorder that was not preexisting, the 
examiner should opine as to whether it is 
at least as likely as not that the 
disorder manifested in service or within 
one year thereafter or is otherwise 
related to his military service, to 
include his reported symptomatology 
therein.

(The term "at least as likely as not" does 
not mean within the realm of medical 
possibility, but rather that the medical 
evidence both for and against a conclusion 
is so evenly divided that it is as 
medically sound to find in favor of a 
certain conclusion as it is to find 
against it).

The examiner is advised that the Veteran 
is competent to report in-service foot 
injuries, his symptoms, and history, and 
such reports, including those of a 
continuity of symptomatology since 
service, must be specifically acknowledged 
and considered in formulating the 
requested opinion.  If the examiner 
rejects the Veteran's reports of in-
service injury and continuity of 
symptomology, he or she must provide a 
reason for doing so. 

A clear rationale for all opinions must be 
provided and a discussion of the facts and 
medical principles involved would be of 
considerable assistance to the Board. 

3.  After the above development has been 
completed, the RO should review the claims 
file to ensure that the aforementioned 
development and remand instructions have 
been fully and properly executed.  Any 
noncompliance found should be rectified 
with the appropriate development. 

4.  Thereafter, the RO/AMC should 
readjudicate the Veteran's claim of 
entitlement to service connection for a 
left foot disorder.  If the benefit sought 
on appeal remains denied, the Veteran and 
his representative should be furnished a 
SSOC and afforded the opportunity to 
review the claims file and submit written 
arguments on the Veteran's behalf, to 
include, as appropriate, a VA Form 646, or 
the equivalent, before the record is 
returned to the Board for further 
appellate review, if appropriate. 

The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs