Citation Nr: 1329728 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 11-30 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to service connection for chronic left foot disorder. 2. Entitlement to service connection for a low back disorder, to include as secondary to a left foot disability. 3. Entitlement to service connection for a right hip disorder, to include as secondary to a left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In that rating decision, the RO denied the claims for entitlement to service connection for a chronic left foot disorder, low back disorder, and a right hip disorder. In July 2013, the Veteran presented testimony during a videoconference hearing before the undersigned Veterans Law Judge. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the transcript has been associated with the claims folder During the Veteran's Board hearing, he raised a new claim for entitlement to service connection for an acquired psychiatric disorder. Moreover, the records raise a claim of service connection for residuals of a left ankle fracture. These matters have not yet been addressed by the Agency of Original Jurisdiction (AOJ) and are not properly before the Board at this time. Accordingly, the matters are referred back to the AOJ for appropriate actions. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The currently diagnosed left foot disorder was not first manifested during active duty service or for many years afterwards; the weight of the evidence is against a finding that it is related to service. 2. The currently diagnosed low back degenerative arthritis was not first manifested during active duty service or for many years afterwards; the weight of the evidence is against a finding that it is related to service or to a service-connected disability. 3. The currently diagnosed right hip degenerative arthritis with sciatic neuropathy was not first manifested during active duty service or for many years afterwards; the weight of the evidence is against a finding that it is related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic left foot disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for a right hip disorder are not met. 8 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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, 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the AOJ, even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent a letter to the Veteran in May 2010 that addressed the notice elements concerning his claims for service connection. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran. In addition to its duty to notify, or inform, the Veteran with regard to his claim, 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 records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has obtained the Veteran's service treatment records as well as obtained any available pertinent records adequately identified by the Veteran. VA also has provided the Veteran with a VA joint examination in July 2010. That examination report shows that the examiner reviewed the claims folder as well as recorded the Veteran's reported history and findings from clinical evaluation, and then provided medical opinions, supported by rational statements, on the nature and etiology of the Veteran's claimed disorders. The Board finds that the medical opinions are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for chronic left foot disorder, a low back disorder and a right hip disorder. He asserts that his current chronic left foot disorder is related to an injury he sustained in service, where he fractured his fifth metatarsal on his left foot and "the ligament tore away from and took part of the bone with it, which made my foot weak." See January 2010 statement in support of the claim. He remembers receiving treatment in service, but he feels that the injury never healed properly and lead to his current left foot problems, including the re-injury of the left foot in 2005. The Veteran further asserts that his current problems with his low back and right hip are the result of his altered gait from loading weight on his right-side in order to alleviate weight-bearing on his left foot. He essentially asserts that his low back and right hip disorders are secondary to his chronic left foot disorder. See Id; see also October 2011 substantive appeal, VA Form-9, as well as July 2013 Board hearing transcript. A review of the Veteran's service treatment records are negative for any complaints of, treatment for, or diagnosis related to a left foot fracture of the 5th metatarsal, or any low back or right hip problems. However, there is evidence of a left ankle injury during service, which resulted in an avulsion fracture of the anterior talus. The left lower extremity was put in a cast for 22 days and then he was treated with a splint. It is unclear how long the injury was monitored, but by January 1981, the Veteran appeared to have returned to full duty as he injured his knee while running. A March 1981 periodic examination shows normal evaluations for feet, spine, and lower extremities, although his history of left ankle fracture was noted. On the associated report of medical history, he specifically denied any foot or back problems. There is no separation examination or medical history report available. There are no available or identified post-service treatment records of foot problems until the Veteran fractured his left foot in February 2005. At that time, it was noted that he had a history of diabetes mellitus and peripheral neuropathy. He was subsequently treated for osteomyelitis and cellulitis of the left foot, and he experienced recurrent episodes of infections for the next two years until he was treated in a hyperbaric chamber. The wound healed, but he has developed left foot deformity due to swelling and large hyperkeratosis. He has a current diagnosis of neurogenic arthropathy and left diabetic foot. Private chiropractic treatment records from 2009 show that the Veteran was treated for lumbar spine problems with sciatica and right hip tendonitis. The record contains a January 2010 medical statement from the Veteran's treating VA podiatrist. The VA podiatrist stated the following: "In my discusses with [the Veteran] he has reported a service related history of a left 5th metatarsal avulsion fracture for which he was treated and states that it is contained in his service medical records... Currently [the Veteran] is a diabetic with peripheral neuropathy and a significant left foot deformity. Over the last four years, he has had a 're-fracture' of the left 4th and 5th metatarsal, numerous plantar ulcerations at this same area, and multiple hospitalizations for infections... It is my professional opinion that [the Veteran] has a permanent inverted left foot deformity that is complicated by his diabetes and it is more likely than not related to his initial service related injury." In July 2010, the Veteran was afforded a VA joint examination in order to obtain on medical opinion on the nature and etiology of his claimed disorders. The examination report shows that the VA examiner reviewed the claims folder and recorded the findings from clinical interview and examination, including the Veteran's reported medical history. The examiner noted that the Veteran reported that he broke his left ankle and was treated with a cast for a few weeks in service, but he did not have any subsequent problems with his left foot/ankle until he developed diabetes mellitus in 1995 and he began to experience tingling and numbness in his feet. In 2005, the Veteran broke this left foot and developed subsequent complications. With regard to the right hip and low back, the examiner noted that the Veteran reported that the pain and problems started in 2006. Based on the findings from the July 2010 VA examination, the following diagnoses were provided: neurogenic arthropathy and diabetic foot in the left foot; degenerative arthritis of the right hip, and sciatic neuropathy of the right lower extremity; and osteoarthritis of the lower back. The July 2010 VA examiner opined that the Veteran's current chronic left foot, low back, and right hip disorders were not incurred in or related to his period of service. The July 2010 VA examiner explained that the Veteran's left ankle was broken and healed in 1980, and his current left foot problems are not related to that previous broken left ankle. The examiner stated the Veteran's current problems started in 2005, when he broke his left foot and his injury was aggravated by his diabetes and neuropathy of the lower extremity. In the examiner's opinion, the Veteran's current left foot problems are the result of his diabetes, neurogenic arthropathy, and diabetic foot. With regard to the Veteran's right hip and low back disorders, the VA examiner noted that his problems did not start until 2006, many years after his period of service. The examiner concluded that the Veteran's low back disorder was more likely related to the natural process of osteoarthritis and his right hip disorder was more likely related to his obesity, diabetes mellitus, and the natural process of osteoarthritis. The Veteran's treating VA podiatrist provided another statement in February 2012. The VA podiatrist's statement was again based on the Veteran's reported history of in-service injury to his left foot and his subsequent treatment. The VA podiatrist provided the following statement: "After discussion with [the Veteran] regarding his permanent foot deformity and looking at some pictures in clinic, [the Veteran] states he recalls an injury to the outside of his left foot similar to what is termed an "avulsion fracture" to the 5th metatarsal. The mechanism of injury is a sudden sharp contraction of the peroneus brevis when the ankle is in plantar-flexion. The suggested treatment is immobilization in a cast for 4-6 weeks or if the fracture is severely displaced and cannot be closed reduced, open reduction internal fixation is recommended with hardware placed across the fracture line. I don't know what the follow-up was to [the Veteran's] original injury was or if x-rays were repeated to assess any healing at the fracture site. After seeing how [the Veteran's] foot has ended up with the fixed varus/inverted left foot position it is very possible that the fracture site may never have healed properly losing the effect of the peroneal brevis muscle as an evertor of the foot. His diabetes diagnosis with peripheral neuropathy and associated weight gain may have further complicate things allowing him to further traumatize this insensate foot. Please consider this statement in consideration of his service related injury." In July 2013, the Veteran testified before the undersigned and he reported that he injured his left foot/ankle in service, which resulted in an avulsion fracture. He recall that the service medical provider who treated him informed him that the ligament that comes down the leg and into the ankle and attaches right by the fifth metatarsal where his trauma occurred. He stated that the ligament "snapped away and took some bone with it and it never really healed properly." See Board hearing transcript, pages 3 and 4. He goes on to testify that when the cast was removed he notice a lump on the top of his foot but "it never really had painful consequences." See Id., page 4. The Veteran later stated that he had no left foot problems, except for some occasional swelling, until he re-injured his left foot in 2005. See Id., pages 9 and 10. The Veteran stated that because of his current left foot problems, his gait has altered and he uses crutches, which has lead to his current right hip and low back problems. See Id., page 11. Chronic Left Foot Disorder With respect to a current disability, VA treatment records show that the Veteran has current residuals of a left foot fracture at third, fourth and fifth metatarsal as well as neurogenic arthropathy and left diabetic foot. With respect to the question of an in-service injury or disease, the service treatment records show that the Veteran fracture his left ankle in September 1980, but they do not indicate any left foot involvement at that time or for the remainder of his period of service. Although the Veteran maintains he fractured his left foot in service, and was told that there was ligament damage involved, the contemporaneous evidence of record demonstrates that he is an unreliable historian in describing and reporting his in-service injury. The Veteran is competent to report what he was told by doctors, Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), but that report must still have credibility, based upon the accuracy of the report. Here, the x-rays and treatment records from service show only a fracture of a bone of the ankle, without metatarsal involvement or any showing of ligamentous damage. Such an injury did not happen until 2005. It appears that the Veteran has conflated the 1980 and 2005 injuries into one. The VA treating podiatrist has endorsed the Veteran's self-diagnosis of an in-service avulsion fracture, but this is based solely on the Veteran's own descriptions of the injury, which are not credible. Mere repetition of the allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board must conclude, then, that the Veteran did not sustain a left foot injury in service as he has alleged. he instead sustained a left ankle injury. For the sake of completeness, even in the absence of an in-service injury, the Board will still address the nexus element of the claim. The weight of the competent evidence of record is against a finding of a relationship between current left foot disability and service. The sole competent and credible evidence of record regarding a nexus is the July 2010 VA examination and opinion; the examiner ruled out a nexus between any current left foot disorder and the Veteran's active service, including the in-service ankle injury. Instead, the medical opinion linked the Veteran's current left foot diagnoses to the 2005 left foot fractures and to his diabetes mellitus and neuropathy of the lower extremity, neither of which is service-connected. This medical opinion was based on a review of the entire claims file, including the service treatment records and the Veteran's reported history, as modified by the contemporaneous descriptions of the in-service injury. The Board recognizes that the Veteran has expressed a contrary opinion. However, he is not competent to opine on the question of etiology in this case. He is not describing an observed cause and effect relationship, which he can observe through his senses and which dictates an inescapable conclusion. Layno v. Brown, 6 Vet. App. 465 (1994). Instead, he is analyzing an inaccurately recalled in-service injury and attributing to it symptoms he did not begin to experience for 25 years. This requires application of specialized medical training and knowledge the Veteran simply does not possess. A lay witness is competent to testify as to some matters of diagnosis and etiology, but only those simple enough to be amenable to lay analysis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). An asymptomatic gap of 25 years, with a serious intercurrent injury, co-morbid systemic disease, and an inaccurate factual premise is simply beyond his capability to consider and opine regarding. His positive opinion is therefore given no weight. His treating podiatrist, of course, does possess the training and knowledge required to offer a competent nexus opinion, and he has done so. However, that opinion is based on inaccurate facts. The Veteran has described not his 1980 injury to the podiatrist, but apparently his 2005 injury. The podiatrist did not have the opportunity presented to the VA examiner to review the contemporaneous service treatment records and obtain an accurate picture of the in-service injury. The gross misstatement of the injury undermines the medical opinion. When an opinion is based on an incorrect foundation, it is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Here, the podiatrist's opinion is pure speculation, based on what may have happened if the Veteran had accurately reported his in-service injury. He states the description by the Veteran is "similar to" an avulsion fracture, and that if it were, the proper treatment could even include insertion of hardware, which did not actually occur. He states clearly that he does not know what treatment was undertaken, or what follow-up was done. At best, he states that it was "very possible" that the (inaccurately) reported in-service injury "may never have healed properly." Not only is this rampant speculation, it also is refuted by the lack of any complaints in service following injury, the silence for 25 years following service, and the Veteran's own repeated statements that he had no problems since his initial treatment. Accordingly, the opinion of the treating podiatrist is entitled to no probative weight. The Board finds that the evidence does not show that the Veteran's current left foot disorder had an onset in service, and the preponderance of the evidence is against a finding that it is otherwise related to his periods of service, to include in-service injury. There is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. Right Hip and Low Back Disorders The Veteran contends that his currently diagnosed right hip and low back disorders, each identified by VA and private doctors as degenerative arthritis, are secondary to his current left foot disorder. As discussed above, service connection is not warranted for left foot disorder, and by extension, service connection cannot warranted for right hip or low back disorder on a secondary basis. See 38 C.F.R. § 3.310. Further, the Veteran has not alleged, and the evidence does not show, that there is any other basis for service connection for the low back or right hip disabilities. Service treatment records reveal no complaints of or treatment for either during active duty, and there is no evidence of arthritis for many years after service. This is well outside the applicable one year presumptive period. Further, the post-service medical records and the Veteran's own statements make clear that signs and symptoms of back and hip problems did not begin until after the 2005 foot injury. There is therefore no evidence of continuity of symptomatology since service for the chronic degenerative changes. Finally, the sole medical evidence of record regarding a nexus is negative. The July 2010 VA examiner opined that the right hip changes were more likely due to obesity, diabetes, and the natural degenerative process. The back degeneration was also related to obesity and a natural process. He specified that neither the back nor hip was likely caused by service; he felt it would be mere speculation to find that service had any role in aggravating either condition. The Veteran's treating podiatrist offered no opinion on the hip or back. The weight of the evidence is against the claims; there is no doubt to be resolved. Service connection for either a right hip disorder or a low back disorder is not warranted. ORDER Entitlement to service connection for chronic left foot disorder is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a right hip disorder is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs