Citation Nr: 1333319 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 05-13 417 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder to include degenerative joint disease. 2. Entitlement to service connection for a bilateral foot disorder to include flat feet, hammer toes, calcaneal spurs and left hallux valgus. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to July 1974 with additional periods of active duty for training and inactive duty for training with the Army Reserve for a period that extended to February 2003. This case originally came to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the RO. In June 2009, the Veteran testified at a hearing held at the Board before a Veterans Law Judge (VLJ). In August 2009, the Board remanded the appeal for further development. In a November 2010 decision, the Board denied the claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By an Order dated in October 2011, the Court granted a Joint Motion for Remand (Joint Motion). In March 2012, the Board remanded the appeal for further development. In July 2013, the attorney submitted additional argument and evidence with a waiver of RO jurisdiction. Additional VA medical records were added to the Virtual VA eFolder in September 2013. On review, most of these records were already contained within the claims folder and, to the extent they are new, they essentially duplicate evidence already of record. A remand for initial consideration by the RO would serve no useful purpose and is not required. See 38 C.F.R. § 20.1304 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In August 2013, the Board sent the Veteran a letter advising that the VLJ who conducted her hearing was no longer employed by the Board. She was offered the opportunity for an additional hearing. In September 2013, the attorney responded that the Veteran did not wish to appear at another hearing. Accordingly, the Board will proceed with the merits of the case. The Virtual VA and VBMS folders have been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to chronic knee condition, including degenerative joint disease, or a foot disorder including pes planus during her initial period of active service or in connection with any subsequent period of active or inactive duty for training. 2. The currently demonstrated degenerative joint disease of the knees is not shown to be due to a documented event or incident of the Veteran's period of active service or any period of active or inactive duty for training. 3. The currently demonstrated foot disorders, to include flat feet, hammer toes, calcaneal spurs and hallux valgus, are not shown to be due to a documented event or incident of the Veteran's period of active service or any period during active or inactive duty for training. CONCLUSIONS OF LAW 1. The Veteran's bilateral knee disability, to include degenerative joint disease, is not due to disease or injury that was incurred or aggravated by active service or active duty for training or injury that was incurred in or aggravated by inactive duty for training; nor may arthritis be presumed to have been incurred in active service. 38 U.S.C.A. §§ 101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309(a) (2013). 2. The Veteran's bilateral foot disability to include flat feet, hammer toes, calcaneal spurs and hallux valgus, is not due to disease or injury that was incurred in or aggravated by active service or active duty for training or an injury that was incurred in or aggravated by inactive duty for training. 38 U.S.C.A. §§ 101, 1110, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in October 2003, March 2006, and August 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was also provided information as to how VA assigns disability ratings and effective dates. The appeal was most recently readjudicated in the February 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains VA medical records. The claims folder also contains the service treatment records relating to the Veteran's period of active service in 1974 and Reserve records pertaining to service from 2001 to 2003. Regarding service records, the Board acknowledges the Joint Motion, wherein the parties agreed that the duty to assist had not been met because there was no evidence that VA requested the records from Code 11. In the March 2012 remand, the Board noted that the RO contacted the United States Army Human Resources Command (Code 11) in June 2008 and subsequently received all available service treatment records. Given this action, the Board found that additional requests for documentation from this source would be redundant. In November 2006, the 949th Transportation Company indicated that it was not in possession of any personnel or medical records pertaining to the Veteran. In June 2008, the Branch Health Clinic at the Naval Amphibious Base, Little Creek, responded that a search for records was negative. VA has made extensive efforts to obtain any additional service treatment records, to include from the 326th Maintenance Battalion. The claims folder contains Formal Findings of Unavailability dated in August 2008 documenting multiple attempts to obtain these records. The Veteran has been advised of the efforts made to obtain records and of the unavailability of such. An August 2008 report of contact indicates that the Veteran thought the 326th had been decommissioned and she requested that VA not prolong the appeals for further research for these records. On review, the Board finds that further attempts to obtain any additional Reserve service records would be futile. Pursuant to the Joint Motion, the parties agreed that the Board impermissibly relied on the November 2009 VA examination and January 2010 and May 2010 addenda. In accordance with the March 2012 remand, the RO obtained additional examination in October 2012 and addendum in January 2013. As explained in further detail below, the Board finds the January 2013 opinions adequate. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F.3d 1339, 1344 (Fed.Cir. 2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir. 2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir. 2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Presumptive periods do not apply to periods of active duty training and inactive duty training. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The service treatment records show that, on examination for enlistment in October 1973, the Veteran's feet and lower extremities were reported as being normal on clinical evaluation. On the report of medical history, she initially responded "yes" to having a trick or locked knee, but changed it to "no." She denied having any foot trouble. On separation examination in June 1974, her feet and lower extremities were again reported as being normal. On report of medical history, she described her health as "good" and denied having a trick or locked knee or foot trouble. The medical records for the Reserve show that, on examination in March 2001, the Veteran's feet were reported as being abnormal, and pes planus was noted. Her retirement examination from the Reserve in January 2003 also noted pes planus, described as moderate and asymptomatic. The lower extremities were otherwise described as normal. In her July 2003 claim, the Veteran stated that she had abnormal feet and had knee problems from running on pavement during physical training. She reported that the onset of her disability was in March 2001. She also claimed that a large "medal" fell on her feet in June 1985. On VA examination in August 2003, the Veteran reported having knee problems for 10 years. Following examination, the diagnoses were those of degenerative joint disease osteoarthritis of both knees; and flat feet, bilateral calcaneal spur, and hallux valgus and mild hammer toes. An opinion was not provided as to etiology. A VA orthopedic note dated in August 2004 indicated that the Veteran presented to the clinic with a complaint of bilateral knee pain for the past 2 years. She also reported having pain during physical training while in the Army. A September 2004 record showed complaints of knee pain secondary to early degenerative joint disease. At her June 2009 hearing, the Veteran testified that her knee problems happened during physical training, plus when a crane fell on her feet. She reported going to the emergency room and being kept for a couple of days at that time. She further testified that she was treated at a hospital in Norfolk, but could not get any of the records. She also indicated that her feet got worse from running and wearing boots and that this had persisted since service. An August 2009 VA podiatry record shows that the Veteran presented with complaints of pain on the inside of her left ankle for about one month. She denied having trauma to the left foot. At a VA examination in November 2009, the Veteran reported that her knees gave out on her and that this had been present since the "lateral part of the 90s." No circumstances as to onset or etiology were recalled. The examiner stated that the relation to her military service was speculative. The X-ray studies showed bilateral degenerative joint disease. Diagnosis was that of recurrent bilateral knee pain and some instability. No etiology was established. As to the feet, the Veteran reported having recurrent plantar foot pain present since the 1990's. She did not personally relate her pes planus to the service. Following examination, diagnosis was that of bilateral symptomatic pes planus. In a January 2010 addendum, the VA examiner stated: The [claims file] was reviewed then and reviewed now. No reference to a diagnosis of knee degenerative joint disease was found in the military physical examinations, the relationship of the DJD of her knees was found on x-ray in November 2009 through her military services and as noted was speculative. Pes planus [was] mentioned in her military physical examination, but no details were found such as date of onset and circumstances of onset. As noted in the previous exam, she [did] not relate her pes planus to the military service. Relation of her bilateral pes planus to the military service would be speculative. Her claims for DJD of her knees and bilateral pes planus [had] already been denied. In a May 2010 addendum, the VA examiner indicated that she could not resolve whether the bilateral knee or foot disorder was related to service without resorting to speculation. As to the knees, the examiner stated: Member [might] have developed this disorder as a natural progression of disease, it [might] have been exacerbatted (sic) by injury or activities not related to military duties as well as military activities but there [was] no record of this and without it I would be resorting to mere speculation that it was. As to the pes planus, the examiner stated: It would be an assumption that the physician that did the enlistment physical actually looked for and did not see pes planus, but making that assumption and the member developed pes planus from the point of enlistment until retirement, there [were] no records in between of any injury or treatment for this condition and it would be mere speculation that this condition developed as a result of activities in active service and inactive training versus activities persued (sic) on civilian activities. In March 2012, the attorney reiterated the Veteran's contentions that a crane fell on her feet when she was in the service, injuring her knees and feet, and that she went to the emergency room and was kept in the hospital for a few days. The Veteran underwent a VA foot examination in October 2012 and reported that, in approximately 1974, she noticed her arches getting lower and causing pain. She also reported that, at that time, she developed hammer toes, calcaneal spurs and left hallux valgus. Following the examination, the diagnosis was that of hallux valgus bilateral; bilateral calcaneal spurs; and slightly contracted toes bilateral (but not hammertoes). The examiner stated that he was unable to render an opinion due to the absence of the claims file. The Veteran also underwent a VA knee examination in October 2012. The Veteran reported that her knees started giving out and hurting in 1974. Specifically, this happened after falling on board ship. When asked if an object had fallen on her, she indicated that that had not occurred. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In support of this opinion, the examiner stated that there was no evidence of complaints during active service and that, at the time of physical examination in January 2003, she stated that she had not had any knee trouble. The claims folder contains a December 2012 deferral, wherein the Decision Review Officer (DRO) determined the opinions were inadequate. As such, additional VA examinations and opinions were obtained in January 2013. As to the feet, the Veteran stated that a cargo crane fell on both her feet and toes during active duty for training and that she was put on bed rest, but did not remember for how long. Years later, she began having trouble with her feet under the arches and around the left ankle. Following an examination and a review of the claims folder, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. An extensive rationale was provided, to include a discussion of service treatment and post-service records. The examiner also pointed out several inconsistencies in reported history and stated: Even if she had suffered trauma such as a crane falling on her feet, it [was] not likely that it would have caused or even contributed to her subsequent finding of pes planus or calcaneal spurs or hallux valgus. All of those foot problems [were] common as people age and [were] not induced by trauma. Bilateral pes planus [was] typically congenital in origin although it [might] be mild initially and not noticed or symptomatic initially, with slow progression with aging. She had pes planus identified during a period of reserve duty, though not during active duty. Her periods of active duty and subsequent training were short and intermittent and not likely to contribute to or cause any chronic foot problems. Regarding the knees, the Veteran stated that she had worked as a boat operator in the Reserve and that this involved standing for long periods of time. She reported that, once during physical training, she was running in a field and fell, hurting her knees. She also reported having problems with her knees in about 1975. Following an examination and a review of the claims folder, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. Extensive rationale was provided, to include a discussion of service treatment and post-service records. The examiner also pointed out several inconsistencies in reported history, noting several versions and that none of them were confirmed by the medical records. The examiner stated: Even if the veteran had suffered any of the events she described at various times - a crane falling onto her knees (with no fracture or laceration of the knees), falling on board ship and having pain for 3 days, or falling while running with 3 weeks before she returned to full activities, none of those injuries [were] consistent with an internal knee injury significant enough to increase the risk for the subsequent development of degenerative joint disease of the knee. She ha[d] never had any severe injury or surgery or fracture. Her claimed symptoms [had] always been bilateral. ... The most likely scenario [was] that she developed degenerative joint disease slowly due to normal aging with minimal symptoms attributable to DJD initially and gradually increasing over the last 10 years, although still not very significant. ...There [was] no history of any trauma significant enough to increase the risk of developing DJD for either knee either in the written record or taking any or all of the various histories of relatively minor knee injury that have been given by the veteran over the years regarding her knees. She was in the reserves from 7/74 until early 2003 and she [did] not give any history of any significant injury during that time, nor [were] there any records documenting any knee injury during 1974 or during her years as a reservist including periods of active training. The periods of active training during those years were short and intermittent, and it [was] not reasonable to arbitrarily assign the onset of her degenerative joint disease either on X-ray or with regard to symptoms to one of those specific periods of training. Analysis In February 2004, the RO denied service connection for degenerative joint disease of the knees and for flat feet with hammer toes, calcaneal spurs, and hallux valgus. The Veteran disagreed with the decision and subsequently perfected this appeal. As set forth, initially, there is evidence of current bilateral knee and foot disability. A review of service treatment records does not show any complaints or findings referable to a knee or foot disorder. Notwithstanding, the Veteran reported that a crane fell on her knees and feet during her initial period of service. The Veteran is competent to report an in-service injury. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a lay person is competent to report on that of which he or she has personal knowledge). For various reasons, however, the Board does not find the Veteran's reported history to be credible. This determination is not based solely on the absence of documentation during service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Rather, the Veteran's reported history on the separation examination in June 1974 contradicts her assertions. That is, she specifically denied having or having had any knee or foot trouble. As to whether she had ever been hospitalized, she only reported a hospitalization at Alexandria Hospital for minor surgery. There is no indication that she was hospitalized during service for the claimed injury. The Board finds the information and findings provided contemporaneous with her separation examination to be far more probative than that provided decades later in pursuit of compensation. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). On review, the record simply does not show a knee or foot injury or a chronic disorder during her period of active service, and there is no evidence of knee arthritis manifested to a compensable degree within one year following discharge from her initial period of service. The Board acknowledges that pes planus was noted on Reserve examinations in 2001 and 2003. While the Veteran reported having both foot and knee pain related to physical training, to include during her Reserve service, there is no basis for linking onset of the currently demonstrated knee or foot condition to an identified event or incident of any period of active or inactive duty for training. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). The claimed knee disorder, however, was not noted during active service, and the provisions of 38 C.F.R. § 3.303(b) are not for application. In determining whether the currently diagnosed disorders are otherwise related to her service, the Board has considered the various opinions of record. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court, however, has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. Moreover, a review of a claims file by a VA examiner, without more, does not automatically render the examiner's opinion competent or persuasive, and conversely, a private medical opinion may not be discounted solely because the opining clinician did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The October 2011 Joint Motion basically indicated that the November 2009 VA examination and January 2010 and May 2010 addenda were not adequate. That is, that the Board impermissibly relied on these to show a lack of medical nexus. The Veteran underwent additional VA examination in October 2012, but this was considered inadequate by the DRO. The only remaining medical opinions specifically addressing etiology are those dated in January 2013. On review, the Board finds the January 2013 VA opinions to be highly probative. The examiner reviewed the claims folder, considered the Veteran's reported history, and discussed the evidence of record in detail. Additionally, the examiner provided sufficient rationale for the opinions. In July 2013, the attorney stated that the January 2013 examiner did not find the Veteran's statements to be credible due to inconsistent histories given as to the origin and onset of her conditions. The attorney argued that the Veteran had a history of brain abscesses which she attributed to her not being able to provide consistent accounts of her injuries in service. In support of this statement, the attorney submitted an internet article indicating that possible complications of brain abscess include memory problems. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The referenced article is general in nature and not specific to the facts of this particular case. Thus, this article, as well as those discussing general causes for calcaneal spurs and overuse tendinopathy, are of limited probative value in this case. The Board further notes that the Veteran was not shown to have suffered a brain abscess until approximately September 2012, but the record contained inconsistencies regarding history prior to that date. Regardless, the January 2013 VA examiner did not base his opinion solely on the contradictory statements or history noted in the record. Indeed, as to both claimed disorders, he considered that, even if things had happened as reported, there was still no relationship to service. Rather, according to the examiner, the claimed conditions were common age-related disorders and not due to trauma. The Board has considered the Veteran's contentions regarding etiology. Nothing in the record demonstrates that she has received any special training or acquired any medical expertise in evaluating and determining causal connections for knee and/or foot disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Moreover, her assertions alone simply do not serve to outweigh the well-reasoned VA opinions set forth above. The preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Service connection for a bilateral knee disorder, to include degenerative joint disease, is denied. Service connection for a bilateral foot disorder to include flat feet, hammer toes, calcaneal spurs and hallux valgus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs