Citation Nr: 1333971 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-00 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral foot disability, to include the residuals of bilateral hammer toe and bunionectomy surgeries. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Atlanta, Georgia, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared and testified at a hearing in November 2012 before the undersigned Veterans Law Judge. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. FINDING OF FACT The evidence of record does not show that the Veteran has a bilateral foot disability, to include the surgical residuals to correct bilateral hammer toes and bunions, that is etiologically related to active duty service. CONCLUSION OF LAW The criteria for service connection for residuals of bilateral hammer toe and bunionectomy surgeries have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 201238 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran in October 2009, prior to the initial adjudication of his claim in January 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. VA satisfied its duty to assist the Veteran in the development of her claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records and private treatment records identified with the claims file. Additionally, the Veteran has not identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided a medical examination or obtained a medical opinion with regard to this claim. The evidence does not establish that an event, disease, or injury occurred during the Veteran's active service that is related to her residuals of bilateral hammer toe and bunionectomy surgeries or evidence establishing that the condition manifested within an applicable presumptive period. In making this determination, the Board has considered the Veteran's statements with regard to uncomfortable foot wear that she was required to wear during service. As explained in detail in the service connection section of the instant decision, the Board finds the Veteran's statement in regards to the uncomfortable foot wear and how that is related to her residuals of bilateral hammer toe and bunionectomy surgeries are not competent evidence. Because the second factor listed above is not present, VA has no duty to provide an examination or obtain an expert opinion in this case. In November 2012, the Veteran was provided an opportunity to testify during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Veterans Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Board Veterans Law Judge (VLJ) who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the November 2012 Board hearing, the undersigned VLJ identified the issue on appeal. Not only was the issue explained in terms of the scope of the claim for benefits, but the outstanding issues material to substantiating the claim were also fully explained. See Bryant, at 497. Specifically, the undersigned explained that the evidence lacking in this case was medical evidence to support the Veteran's assertions as to why she believed an injury to her toes was present during service and related to her 1983 and 1988 surgeries and residuals thereafter. The undersigned held the record open for 60 days following the hearing, specifying that this was until January 2013, so that the Veteran could submit a medical opinion to support her claim and gather any evidence of an injury in-service. No additional evidence has been submitted. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board notes that the Veteran contends in her January 2010 notice of disagreement (NOD) that she did not receive notice of the VA duty to assist. However, the record shows that the Veteran returned a VCAA notice response letter in October 2009 which accompanied her earlier VCAA notice letter in October 2009. The Board thus finds that the Veteran was given notice of the VA duty to assist. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board notes that bilateral hammer toe and bunions do not fall within the listed chronic diseases. As such, the alternative basis for awarding service connection through continuity of symptomatology under 38 C.F.R. § 3.303(b) is not available under the circumstances of this case. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology only relates to the chronic diseases enumerated in 38 C.F.R. § 3.309(a)). Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The courts have not explicitly laid out the circumstances in which lay evidence would be sufficient, but the case law suggest that a lay person could note the immediate consequences of an in-service injury. See Trafter v. Shinseki¸ No. 10-3605, slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Merits of the Claim The Veteran contends that the foot wear that she was required to wear in service led to her bilateral hammer toe and bunionectomy surgeries and following residuals. During the Veteran's November 2012 Board hearing, the Veteran asserted that her feet still hurt sometimes. Turning first to the Veteran's service treatment records, the Veteran's enlistment examination in November 1980 notes that her fourth and fifth toe were amputated before entering service. In April 1983, a "Screening Note of Acute Medical Care" reports that the Veteran was seen for pain in the bottoms of her feet which she claimed, at the time, had been ongoing for the last 3 weeks, but there had been no pain in the previous 24 hours. After being seen, the Veteran was told to use "warm Epsom salt soaks 2x daily keep [heightened] [as] much [as] possible." Turning to the evidence post-service, The Veteran submitted a July 2009 private medical report from a physician that states: [Veteran] had multiple corrective foot surgical procedures. The procedures were bone and tendon surgery to correct bunions and hammer toes. The approximate dates were: a.) 1986 - Bunionectomy and hammertoe surgery of left foot b.) 1988 - Bunionectomy and hammertoe surgery of right foot. There were no postoperative complications. The medical records for this patient's case are no longer available to me. Additionally, the Board notes that the Veteran submitted a letter from a treating doctor for PHN Herpes Zoster. As this has no correlation with the claim before the Board, this letter will not be discussed. At the Veteran's hearing in November 2012, the Veteran states "the only evidence I have was what the doctor [...] when he did my surgeries." The Board will now analyze this evidence. Turning to Holton element (1), the existence of a present disability, the Board notes that the Veteran has not shown, produced, or identified competent or credible lay or medical evidence of a current disability. The Veteran has only produced evidence of the foot surgeries that took place in 1986 and 1988 to correct hammertoes and bunions. The private physician reporting this information, in a letter dated July 2009 - more than 20 years later -states that there were no complications of the surgeries. So to the extent the Veteran asserts that she suffers from residual pain in her feet related to such surgery, such claims are contradicted by the very medical evidence she identified as supportive of her claim. Thusly, in the first instance the Board finds that the appeal must be denied because there is no medical evidence to show that the appellant currently has a bilateral foot disability of any kind. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). While the appellant is certainly competent to describe bilateral foot pain, the pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of evidence of a current disability, service connection for is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). However, even if the Board assumes, for the sake of argument that the Veteran suffers from residuals related to her bilateral foot surgeries, the appeal still must be denied. Turning to Holton element (2), evidence of an in-service incurrence or aggravation of a disease or injury, the Board observes while in service there is no evidence that the Veteran incurred any injury to her toes. While the Veteran's enlistment examination in November 1980 notes that she had her fourth and fifth toe amputated before entering service, the Board observes that following her entry into service there is no documentation in her service treatment records, or post-service records, related to the pre-existing toe amputations. The Board acknowledges that in April 1983 the Veteran was seen for pain in the bottom of her feet, which she claimed at the time had been ongoing for the last 3 weeks. However, the Board also observes that this notation did not provide any mention of the Veteran's toes, including hammertoes or bunions, and following this examination, the Veteran was told to use "warm Epsom salt soaks 2x daily keep [heightened] [as] much [as] possible." Following this note, there are no additional reports of complaints of any foot trouble or specific complaints about the Veteran's toes. As such, to one instance of foot pain appears to have been acute and transitory and resolved prior to discharge. Thus, the Board finds that Holton element (2) is not met as there is no reference in the Veteran's STRs to an injury to her toes. The final question before the Board is whether the Veteran's residuals of bilateral hammer toe and bunionectomy surgeries is related to her active service, Holton element (3). A relationship or "nexus" to service must be established on a direct basis. Consideration has been given to the Veteran's lay assertion that her hammer toe and bunionectomy are related to her in-service requirement to wear required footwear, which she described as being uncomfortable. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the origins of her post-service hammer toe and bunions, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While hammer toes and bunions may be observable to lay persons, under the circumstances of this case the probative value of comments made by the Veteran as to the etiology of the hammer toes and bunions are of limited probative value. This is particularly true in this case, as the medical evidence of record does not indicate an etiological relationship between the post-service foot surgeries and any event, incident, or injury in service. The Board emphasizes that while the Veteran is competent to report pain and observable symptoms, there is no indication that the Veteran is competent to etiologically link such pain to her active service, to include in-service use of allegedly uncomfortable footwear. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. Notwithstanding the Veteran's lack of competence in rendering a medical opinion in this matter, the Board refers to the more than 29 year time span between the Veteran's report of a disability to VA and the Veteran's separation from service. The mere absence of medical records does not contradict a Veteran's statements about her symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not report experiencing any symptoms of the claimed conditions for 29 years after service. This long period without reported problems weighs against the appeal. In this regard, the record shows that the Veteran first reported a toe/bunion disability related to service in an August 2009 claim for VA benefits, but her records show that she her separation from service occurred in November 1983. Additionally, while the Veteran had surgery to correct her hammertoes and bunions in 1986 and 1988, she did not report a disability due to residuals of these surgeries to the VA until August 2009. And the private medical report submitted in conjunction with her claim, and dated in July 2009, specifically states that there were no complications to the surgeries, and the report is otherwise silent to the etiology, from service or otherwise. So much time had elapsed since the time of the surgeries that the records pertaining to the operations were destroyed by the Veteran's private healthcare provider. The Veteran admits, in her November 2012 hearing before the Board, that the only medical evidence she can provide is the fact that she had surgeries some years after service. Additionally, following the November 2012 hearing, the Board kept the record open to allow the Veteran to obtain additional evidence, however, no additional evidence was submitted. As there is no competent and credible lay or medical evidence of a current disability, in-service injury or disease, or opinion on the question of nexus, the preponderance of the evidence weighs against a finding that the Veteran's alleged residuals of bilateral hammer toe and bunionectomy surgeries are related to the footwear the Veteran was required to wear while in service. Therefore, service connection for a bilateral foot disability, to include residuals of bilateral hammer toe and bunionectomy surgeries, is not warranted. The Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). ORDER Service connection for bilateral foot disability, to include the residuals of bilateral hammer toe and bunionectomy surgeries, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs