Citation Nr: 1330000 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-09 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral ankle hypermobility, claimed as left and right ankle condition. 2. Entitlement to service connection for left heel disability. 3. Entitlement to service connection for right heel disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, MO. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that most of the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. The only document in the Virtual VA file that is relevant and not included in the paper claims file is a written brief presented by the Veteran's representative dated in August 2013. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran had preexisting asymptomatic bilateral pes planus noted upon entrance into service. 3. The most probative clinical evidence of record is against a finding that the Veteran's preexisting bilateral pes planus caused or aggravated his current bilateral ankle, left heel, or right heel problems during service 4. The most probative clinical evidence of record is against a finding that the Veteran has bilateral ankle, left heel, or right heel problems caused or aggravated by service. CONCLUSIONS OF LAW 1. Service connection for bilateral ankle hypermobility is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. Service connection for left heel disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. Service connection for right heel disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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 the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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 the instant case, notice was provided to the Veteran in December 2008, prior to the initial adjudication of the claim in July 2009. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the December 2008 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, private treatment records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for a VA examination in July 2009. The Board finds that the findings and medical opinion obtained in this case are more than adequate, as the examination report provides medical conclusions relevant to determining service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The claims file, including the medical records, was reviewed and the examiner considered the full history of the disabilities. The Board finds that the examination was adequate to allow proper adjudication of the issues on appeal. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision at this time. II. Legal Criteria, Factual Background, and Analysis A. Service Connection Criteria The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). B. Background and Evidence The Veteran is seeking service connections for bilateral ankle hypermobility, a left heel disability, and a right heel disability. In deciding this case, the Board reviewed service treatment records, a VA examination, private treatment records, the Veteran's assertions in support of his claim, and the Veteran's representative's arguments. Each piece of evidence will be discussed in turn. The Veteran's entrance examination, dated in November 1966, noted that he had preexisting asymptomatic bilateral pes planus. The next relevant entry in the Veteran's service treatment records is a treatment note dated in March 1967. The report indicates that the Veteran twisted his right foot in a rut. The provisional diagnosis was a right heel contusion. An X-ray was ordered. The findings indicated: "There is a line of sclerosis in the superior mid portion of the left calcaneus indicating a healing stress fracture in this area. No other abnormalities are noted. Impression: Healing stress fracture mid calcaneus, left foot." There were no further entries in the service treatment records regarding the March 1967 injury or regarding any other feet or ankle problems. At his VA examination, the Veteran asserted that he saw a private doctor while on leave due to a possible right hip problem. Efforts to obtain those records have failed. The exit examination report dated in November 1970 is not fully completed. There are dental results, laboratory findings, audiometer test results, and some other findings, but the clinical evaluation section is blank. The Veteran claims he was not given an exit examination and was told he could get one if he agreed to delay his discharge by two weeks. However, he did sign a statement indicating that he certified that he was informed of and understood the provisions of BUMED (U.S. Navy Bureau of Medicine and Surgery) Instruction 6120.6D. That instruction required that the Veteran be told "You have been examined and found to be physically fit for separation from active duty. If you feel you have a serious defect or condition that is unfitting, tell the doctor who examined you. The doctor will evaluate your defect or condition and, if necessary, refer you to a hospital for further study and, if warranted by the further study, appearance before a medical board." See United States Navy Medical News Letter, Vol. 54 No. 5, November 1969, at 52 found at http://archive.org/details/NavyMedicalNewsletter196911. The Veteran was afforded a VA examination in July 2009. He again reported that he twisted his right foot during basic training in March 1967. On the day following the twist, he reported that both ankles appeared swollen. However, he was forced to complete a 5-mile march in full gear. He had increasing pain and finished the march nearly last in his platoon. The Veteran claims he was harassed by his drill instructors and kicked in the ankles. It was only then, reported the Veteran, that he was sent to sick call. The Veteran told the examiner that he commonly experienced heel pain after his discharge from service. He reported having to walk on his toes in the morning due to the pain in his heels. He also experienced cramps in his legs and feet. The Veteran also reported ankle pain and swelling in both feet. At such times, he reports not being able to put on his dress shoes. He has also had a history of gout of the left podagra beginning 8 years before the examination. It has occurred in both great toes about one time per year. He has taken indomethacin or colchicines for these events but not regularly. The Veteran reported that he uses inserts for foot pain with benefit and takes Tramadol for muscle cramps. Flare-ups of the ankles were reported to be severe and occur every 2 to 3 weeks and last 1 to 2 days. Incapacitating episodes of arthritis were reported to occur once a year and last for 1 day. The Veteran also reported to be able to stand for 15 to 30 minutes and being able to only walk between a quarter of a mile to a mile. The examiner reported swelling and tenderness of the ankles. The ankles were shown to have instability and abnormal motion. The instability is described as "increased excursion with inversion stress." There was no objective evidence of pain with active motion. The left dorsiflexion was measured as 0 to 20 degrees and left plantar flexion was measured as 0 to 24 degrees. The right dorsiflexion was measured as 0 to 20 degrees and right plantar flexion was measured as 0 to 26 degrees. There was no objective evidence of pain following repetitive motion and no additional limitations after three repetitions. There was no evidence of joint ankylosis. The examiner diagnosed the Veteran with bilateral ankle hypermobility. The reported left foot symptoms included pain (while standing, while walking, and at rest), swelling (while standing, while walking, and at rest), fatigability (while standing and walking), lack of endurance (while standing and walking), and other symptoms. The location of the pain was reported to be in the sole of the foot, the swelling to be in the whole foot, and the fatigability to be in the arch and metatarsals. The reported right foot symptoms included pain (while standing, while walking, and at rest), swelling (while standing, while walking, and at rest), fatigability (while standing and walking), lack of endurance (while standing and walking), and other symptoms. The location of the pain was reported to be in the sole of the foot, the swelling to be in the whole foot, and the fatigability to be in the arch and metatarsal pad area. The Veteran reported flare-ups in his feet of 1 to 3 times a month that last between 2 to 7 days. The left foot exam showed no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. There was evidence of tenderness. The Veteran winced with pressure over the "second metatarsal and medial malleolous plantar fascia from heel to midfoot." The right foot exam showed no evidence of painful motion, instability, weakness, or abnormal weight bearing. There was evidence of swelling and tenderness. The Veteran winced with palpitation between the 3rd and 4th interspace. The Veteran was diagnosed with plantar fasciitis; minor hammer toe deformity (left greater than right); degenerative arthritis of the great toe (1st metatarsophalangeal (MTP) joint); probable bilateral Mortons Neuroma (right 3rd and 4th interspace); and bilateral great toe degenerative joint disease. The examiner opined that the bilateral ankle condition is less likely as not (less than 50/50 probability) caused by or a result of the twisting injury to the right ankle in March 1967. The examiner noted that the instability is bilateral and his documented twisting injury was unilateral. Further, in regards to the fracture found in the 1967 X-ray, the examiner concluded that this fracture "would not come about by a twisting mechanism but rather repetitive impact loading." Also, the questioned stress fracture (left) was on the side opposite the twisting injury (right). The examiner opined that the Veteran's bilateral foot condition is less likely as not (less than 50/50 probability) caused by or a result of the twisting injury to the right ankle and questionable stress fracture of the left heel (calcaneus). In regards to the X-ray conducted in March 1967, the examiner explained that the line is still visible on the films of December 2008. However, given the nature of stress fractures and radiographic healing, the examiner doubts this line was really a stress fracture. He reported that the "line likely represents another benign process." The examiner provided detailed analysis of why the current conditions were not the result of the March 1967 injury or the Veteran's preexisting pes planus. He reported that the "podiatric evaluation and current clinical examination suggests chronic plantar fasciitis which is known to become more symptomatic with aging and would not be caused by the twisting injury he sustained in boot camp. The pes planus that he entered the service with might over time be a factor in aggravation but as he did not pronate on examination that makes the stress from pes planus on the plantar fascia somewhat less." Further, the examiner explained that the "great toe arthritis and [the Veteran's] hammer toe changes at the second MTPs are definitely not connected to his twisting injury of the ankle. The Morton's neuroma likely causing the weight bearing burning sensation between the 3rd and 4th toes of the right foot is likely aggravated by the greater degree of arthritis of the right great toe joint compared to the minor change on the left. This greater degree of deformity on the right would cause greater intermetatarsal pressure on the right than the left." In conclusion, the examiner found that with respect to all the foot diagnoses, there is less likely as not a causal connection to the twisting injury. Rather, other factors as outlined in the report are more likely to provide explanations of the Veteran's current foot complaints. The Board also reviewed VA treatment records and private treatment records. Beginning in 2008, the Veteran complained of various feet and ankle problems at the VAMC Kansas City. The records show treatment for a number of problems related to the Veteran's feet and ankles. The Veteran was also treated by several private health care providers. The relevant private records in the claims file are dated as early as June 2007. He has been diagnosed with heel spurs, pain in his feet, limited range of motion in his ankles, plantar faciitis, among other problems. However, none of the private treatment records or VA treatment records provides an opinion on the etiology of the Veteran's conditions. The Veteran claims that he was treated for various feet and ankle problems right after he was discharged from service. VA attempted to help the Veteran obtain those records, but those efforts have failed. The Board also considered the Veteran's assertions. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran claims that his feet and ankle problems started in service and continued since that time. In his claim, he reported that he went to sick call in March 1967 due to pain and swollenness. In later statements, he asserted that his drill instructors kicked his ankles and made him go on a 5-mile march when his feet were swollen. The Veteran also submitted a statement from his brother who was in the same unit at basic training. The brother corroborates the Veteran's story that the drill instructors abused the Veteran and that it was not until after the march that the Veteran was allowed to report to sick call. The Veteran also asserts in his VA Form 9, dated in March 2010, that he received treatment in the 1970s and that he complained of feet pain at a 1988 Agent Orange examination. The Board also considered arguments presented by the Veteran's representative. Those arguments do not offer any additional evidence not discussed above. C. Analysis The Veteran claims that his feet and ankle problems began in service and have continued since that time. The Board notes that the Veteran was treated for a right foot and right ankle problem in March 1967. In his recent statements, the Veteran claims that both of his ankles were swollen when he reported to sick call in March 1967. However, the service treatment record is clear that only his right foot and ankle were injured in the sprain. Regardless, the Veteran was not treated for any other feet or ankle problems while in service. The evidence does not indicate that he had any problems at the time he was discharged from service. Also, there are no treatment records until over 35 years after he was discharged from service. The Veteran claims that he complained of feet problems in 1988, but that is still 18 years after service. While the treatment records show an extensive recent history of treatment for feet and ankle problems, there is nothing in the records that are in contravention of the VA examination or provide any more relevant information not found in the VA examination report. Importantly, there is no medical opinion in the treatment records that support the Veteran's contention that he suffered from continuous ankle and feet problems. In weighing the competent medical evidence, only the VA examination offers an opinion on the etiology of the Veteran's feet and ankle conditions. The opinion from the VA examiner is clear that the current problems are not related to the Veteran's time in service or pes planus. While he had a documented injury in service and has current feet and ankle problems, there is no medical evidence establishing a nexus between the current problems and the 1967 injury. The Board gives greater probative weight to the competent medical opinion over the Veteran's assertions. The Veteran's current problems were not caused by or aggravated by his time in service. Therefore, the Board finds that service connection cannot be granted. ORDER 1. Entitlement to service connection for bilateral ankle hypermobility is denied. 2. Entitlement to service connection for left heel disability is denied. 3. Entitlement to service connection for right heel disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs