Citation Nr: 1330028 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-17 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of broken toes of the left foot. 2. Entitlement to service connection for residuals of frostbite of the left cheek. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to August 1966. This case comes before the Board of Veterans Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for residuals of broken toes of the left foot and residuals of frostbite of the left cheek. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information or evidence. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current left foot disability that is related to his service. 2. The preponderance of the evidence is against a finding that the Veteran has a current left cheek disability that is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of broken toes of the left foot have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for residuals of frostbite of the left cheek have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. An August 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service treatment records (STRs)were requested and received in September 2010. The claims file contains lay statements from the Veteran, and he has submitted a personnel record confirming his discharge from Reserve duty due to physical disqualification in January 1971. His STRs reflect that his physical disqualification from Reserve duty was a result of a tuberculosis diagnosis. The claims file contains a VA foot examination report dated in October 2010. That report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing a physical evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's current disability and an opinion. The examiner included an explanation for his opinion based on both on the medical and lay evidence of record. Accordingly, the Board concludes that the examination is adequate for rating purposes. With respect to the claim for residuals of frostbite of the left cheek, a VA examination was not scheduled to obtain a medical opinion. The Board finds that such examination and opinion is not necessary. Under the VCAA, VA is obliged to provide an examination when the Veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d) 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As discussed below the record does not include any competent and credible evidence showing a current diagnosis of, or treatment for, residuals of frostbite of the left cheek. The Veteran has not alluded to the existence of any such evidence. There is also no evidence establishing that frostbite of the left cheek occurred during service. Accordingly, an examination is not required here, even under the low threshold of McLendon. In addition, the Veteran indicated to the VA examiner that he is receiving Social Security pension benefits, but at no time did the Veteran state he was in receipt of Social Security disability benefits. As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case, and the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). The Veteran submitted a response to the notice letter dated August 2010, stating that he enclosed all information or evidence to support his claim and that he had no other information or evidence to give to VA. As a result, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, 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). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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 veteran 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. III. Analysis The Veteran claims that service connection is warranted for residuals of broken toes in the left foot and for residuals of frostbite of the left cheek. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence demonstrates that service connection is not warranted for either claim. Residuals of broken toes in the left foot In assessing whether the Veteran is entitled to service connection for residuals of broken toes of the left foot, the evidence of record must show that the Veteran has a current disability. The October 2010 VA examiner diagnosed the Veteran with metatarsalgia of the left foot. Thus, the medical evidence of record shows that the Veteran has a current diagnosis, which establishes the first element for service connection. The Board also finds that the second element for service connection, an in-service injury, has been met. The Veteran's service treatment records show that the Veteran reported problems with foot pain in February 1966. X-rays were taken, which showed normal findings. A March 1966 record indicates a two day history of metatarsal swelling in the left foot. X-rays taken revealed evidence of an early stress fracture of the third metatarsal. The podiatry clinic issued the Veteran a prescription for a felt cutout and steel insert for his boots. Separation examination in July 1966 did not note any foot pain or foot trouble. However, the preponderance of the medical evidence of record is against a finding that the Veteran's current left foot disability is related to active military service. The most probative and persuasive evidence in this regard is the negative opinion of the VA examiner in October 2010. The examiner's opinion is afforded significant weight as it was based on a review of the claims file and a physical evaluation of the Veteran. An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner opined that it was less likely than not that the Veteran's current left forefoot metatarsalgia symptoms are residual to the stress fracture of the third metatarsal of the left foot sustained in service and she provided the rationale for her opinion. The examiner stated that there was no evidence of chronic left forefoot pathology, and that he showed no evidence of weight-bearing abnormality or post-traumatic arthritic changes. In addition, the examiner found that because the Veteran has not sought any formal medical attention for ongoing left foot pain symptoms, it was unlikely that his current symptoms are attributable to a stress fracture which occurred nearly 45 years ago. The Board finds that the VA opinion in October 2010 is persuasive and probative as the examiner reviewed the record and provided a clear rationale for her opinion based on the evidence of record and general medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the Veteran attributes his current foot problems to his injury sustained in service in February 1966. At the October 2010 VA examination, the Veteran reported that his foot "still hurts all the time." The Veteran stated that while in boot camp at Fort Wood he sustained a stress fracture of three toes on his left foot. (As noted above, the STRs show a stress fracture of only one toe.) The Veteran stated that since leaving service, he has had continued pain in his left foot, but denied any re-injury of the foot since service, as well as any hospitalizations or surgical interventions. He had not seen any podiatrists and not sought any medical treatment for his foot since service, and has gotten by using over the counter gel insoles as well as aspirin once a day. According to the Veteran, the pain in his foot starts over the third toe and radiates up to the midfoot level, and worsens when standing. He worked all his life as a mechanic, is now on Social Security pension, but still occasionally works as a mechanic. In a statement he submitted to the RO and to the Board in August 2012, he stated that while in basic training, following a "very" cold day, he woke up the next morning unable to feel his toes and in severe pain. He had to go on sick call because he could hardly walk and the pain was severe. After going to the hospital to get medical attention, x-rays were taken and he had found out that he had four broken toes (again, STRs only show one toe fracture). He stated that he was given an insole for his boot and a piece of metal was inserted to make his boot rigid. He did not remember doing anything to get them broken. The Veteran also stated that he still experiences pain and discomfort, especially when standing in the morning and with a change in the weather. In his Notice of Disagreement (NOD) dated December 2010, the Veteran stated that he did not seek medical treatment because when he was in the military he was told there was not a whole lot that could be done other than to take aspirin and wear supports, which he did. The Veteran also stated he was discharged due to physical disability. On his VA Form 9, dated June 2012, he reiterated that he was exposed to extreme cold weather in Fort Wood in 1966, and that his discharge from the military was due to physical disqualification from the broken toes and frostbite. The Veteran is competent to provide evidence with respect to his knowledge of facts or circumstances as he observed them, including any resulting pain or discomfort. 38 C.F.R. § 3.159(a)(2). The Board notes that the Veteran contends that his current foot disability is related to military service. The Veteran is competent as a lay person to report the onset of symptoms and the circumstances surrounding such. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the Veteran is not competent to provide an opinion on a complex question such as the etiology of his metatarsalgia of the left foot. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran is not a qualified health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current foot disability and military service. For the foregoing reasons, the Board finds that the Veteran's efforts to link his current metatarsalgia of the left foot to his service are outweighed by the medical opinion from the October 2010 VA examination report. Accordingly, the Board finds that, while the Veteran has a current disability and an in-service injury, a nexus between those two elements have not been established. Finally, the Board notes that the Veteran's claim does not involve a chronic disease listed under 38 C.F.R. § 3.309(a). As such, an in-service nexus may not be rebuttably presumed based upon a showing of disabling symptoms within the initial post-service year. 38 C.F.R. § 3.307, 3.309(e). Similarly, the nexus requirement may not be met through a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b); See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool reserved for use in determining whether a chronic disease enumerated under 38 C.F.R. § 3.309(e) arose in service or within an applicable presumptive period). Accordingly, entitlement to service connection for residuals of broken toes of the left foot is not warranted. Residuals of frostbite of the left cheek The Veteran also contends that service connection is warranted for residuals of frostbite to the left cheek. The Veteran states that six weeks into his basic training, while outside marching on a "very" cold day, his Sergeant told him he had frostbite on his left cheek. He contends that his cheek still hurts during the winter and in cooler weather. The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence of record is from the Veteran's own lay statements, which he contends that his cheek still hurts during the winter and in cooler weather. The Veteran is competent to state that he has an observable symptom such as cheek pain, and he is competent to report first hand events such as an injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran has not submitted medical evidence to support his lay assertions that he has a current disability that had its clinical onset during service or is otherwise related to active service or a service-connected disability. The Veteran is competent to identify an observable manifestations, such as pain, but he is not competent to render a medical diagnosis or opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this case, there is no post-service evidence of record of diagnoses of or treatment for frostbite to the left cheek, or any residuals thereof. The Court has held that Congress specifically limit service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for residuals of frostbite to the left cheek cannot be awarded. See Brammer, supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). There is no competent medical evidence of record that demonstrates the presence of frostbite, and a residual disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for residuals of frostbite to the left cheek is not warranted. ORDER Service connection for residuals of broken toes of the left foot is denied. Service connection for residuals of frostbite of the left cheek is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs