Citation Nr: 1334440 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-14 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from July 1955 to April 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans (VA) Regional Office (RO) in St Petersburg, Florida. In September 2011, September 2012, and March 2103, the Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) for further development and adjudicative action. The case has now been returned to the Board for further appellate review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current right foot disorder, variously diagnosed as osteoarthritis, hallux rigidus, and hammertoe, is not due to his period of service, nor did arthritis manifest to a compensable degree within one year following service discharge. CONCLUSION OF LAW The criteria for service connection for a right foot disorder are not met, and service connection for arthritis of the right foot may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 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 Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran in this case was provided complete notice prior to the rating decision on appeal, to include the disability-rating and effective-date elements of a service connection claim. In any event, the Veteran has not cited any prejudice regarding the timing or the content of the notice he received. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran has also been afforded the benefit of VA's duty to assist. The Board remanded the case in September 2011 for the purpose of affording the Veteran a VA medical examination, which was performed in October 2011. An addendum was obtained in July 2012. In September 2012, the Board remanded the case again for an additional opinion upon determining the October 2011 and July 2012 VA examination report and addendum to be inadequate. The requested opinion was obtained in November 2012. The Board has carefully reviewed the examination report and finds the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In March 2013, the Board remanded the case once again for further efforts to obtain potentially outstanding service treatment records. When service records are presumed to have been destroyed while in government custody, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). Review of the file shows that appropriate efforts have been made to obtain alternative forms of evidence, and that further efforts would be futile. The RO/AMC has made several attempts to request any outstanding service treatment records (STRs), including inpatient clinical records relating to a 1956 hospitalization in Seoul, South Korea, as reflected in requests via the Personnel Information Exchange System (PIES) in April 2013. Those requests were each met with negative responses indicating that the requested records were fire-related. The Board points out that the April 2013 response specifically notes that Army clinical records for the period requested were kept in the area destroyed by the 1973 fire at the National Personnel Record Center. Those negative responses are consistent with prior negative responses sent to the Veteran in January 1983, May 1985, and October 2004, upon his requests for service records, including one in which he specifically identified records pertaining to his claimed hospitalization. VA has no duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Board finds that, although the RO/AMC did not complete the formality of documenting its findings in a memorandum, there has been substantial compliance with its March 2013 remand directives. See Donnellan v. Shinseki, 24 Vet.App. 167, 116 (2010); Dyment v. West, 13 Vet.App. 141, 147 (1999). No useful purpose would be served in remanding the issue decided herein for a formality; such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran has not requested a hearing before the Board. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant evidence. To the extent that the Veteran has identified by name private providers who treated him during the 1960s and 1970s for a right foot disorder, he has failed to provide the proper authorization for the release of those providers' records. In correspondence dated in November 2012, the RO/AMC notified the Veteran that an October 2012 authorization he submitted was not a proper authorization form and requested the Veteran to fill out an Authorization and Consent Form for the private treatment providers that he had referenced. However, the Veteran failed to respond to the request with completed authorizations. He similarly failed to respond to April 2013 correspondence again requesting that he identify and complete authorizations for the release of records from any provider who has treated him for his right foot disorder. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal. Service Connection The Board has reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Following a review of the record, the Board finds that service connection for a right foot disorder is not warranted. Initially, the record establishes a current right foot disorder. For example, an October 2011 VA examination report shows diagnoses of osteoarthritis, hammertoe, and hallux rigidus. Additionally, private treatment notes dated in October 2009 and November 2009 show a diagnosis of hallux limitus. Accordingly, the current disability requirement for establishing service connection is satisfied. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record also tends to support in-service incurrence of a right foot injury. Service treatment records are not available and are presumed to have been destroyed by fire while in government custody. The only available service records are limited personnel records, including DD Form 214, which shows a military occupational specialty of supply handler. The Veteran has competently asserted that he sustained injury to his right foot in service during an incident in which a forklift he was operating overturned. Moreover, of record is a 2002 lay statement from F.A.S. attesting to his knowledge of the Veteran being hospitalized in service during the winter of 1956 following a forklift accident. He specifically recalled the Veteran complaining of his right toe. The Board points out that the lay statement does not specifically corroborate the Veteran's account of having surgery on his right foot during service, and, as discussed further below, other evidence appears to contradict that assertion. Nevertheless, considering VA's heightened duty to consider the benefit of the doubt, the Board finds his account of in-service injury to the right toe (but not surgery) to be consistent with the circumstances of his service and other evidence of record, and thus, credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As the in-service occurrence requirement is also satisfied, the remaining question is whether there is a link between the current right foot disabilities and the in-service right foot injury. See Davidson, 581 F.3d 1313. Here, the medical evidence of record does not establish a direct connection between the currently diagnosed right foot disorders and service, to include injury to the right foot therein. The November 2012 VA examiner opined that the Veteran's right foot disorders are less likely than not related to the claimed in-service injury, event, or illness. The examiner noted that hammertoe is usually associated with neuropathies, and osteoarthritis and hallux rigidus are commonly due to aging, the presence of a weight-bearing joint (joint stress), and prior injuries. However, while the Veteran had a prior injury in service, the first evidence of current right foot problems of record are dated in 2009, more than 50 years after service. The examiner also found probative the fact that the Veteran had negative pain assessments in February 2001, February 2003, and July 2004, thus supporting that the right toe was not an issue of pain or discomfort at those times. The Board acknowledges that the VA examiner based the opinion, in part, on a lack of evidence showing continuity of symptoms since service. As discussed further below, the Board finds the Veteran's statements regarding a continuity of symptoms since service not credible, and therefore, the omission of discussion of those lay statements does not render the opinion inadequate in this instance. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; the second inquiry involves consideration of whether the medical expert provided a fully articulated opinion, and the third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board finds that the November 2012 opinion provided an adequate rationale that was based on a review of treatment records, the Veteran's account of symptomatology and treatment, current diagnoses, as well as medical principles and expertise. Accordingly, the Board affords it to have significant probative value under the criteria cited in Nieves-Rodriguez. See also Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Significantly, there is no contrary medical evidence of record. Additionally, while earlier VA opinions in October 2011 and July 2012 are not complete and of limited probative value, they do not lend any support to the Veteran's claim. The prior VA examiner found that the Veteran's arthritis was most likely due to aging, and that hammertoes are often found in conjunction with osteoarthritis. Thus, the examiner concluded, at the Veteran's then-age of 75, his foot condition is most likely related to aging. To the extent that the examiner concluded that the Veteran's current right foot osteoarthritis is consistent with aging and hammertoes are common with arthritis, the conclusion provides an etiology for those right foot conditions, and the Board finds that portion of the opinion to be probative, as it was based upon physical examination and medical expertise. In this regard, the Board points out that arthralgia, but not arthritis, was diagnosed following private x-rays of the right foot in 2009, suggesting that arthritis was not present just years prior to the October 2011 examination. That finding suggests that arthritis did not manifest until after October 2009, more than 50 years after service. The Board acknowledges that the Veteran has asserted in written statements that his current right foot disorder is related to service. Lay persons are competent to provide opinions on some medical issues, but the etiology of a right foot disorder with multiple diagnoses is a complex medical question not within the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report the onset and symptoms of right foot pain, any actual diagnosis of a right foot disorder requires objective testing to diagnose, and can have many causes. 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). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current right foot disorder requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that he has a current right foot disorder that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his claimed current right foot disorder is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which fails to show a nexus between a current right foot disorder and the Veteran's service, is of greater probative value than the lay contentions of the Veteran. Furthermore, to the extent that the Veteran asserts that his current right foot symptoms have been recurring since his claimed injury in service, the Board finds the Veteran's assertions not credible, notwithstanding the fact that service connection cannot be established based on continuity of symptomatology for diagnosed osteoarthritis, hallux rigidus, and hammertoe. In this regard, the Veteran did not report longstanding symptoms in October 2009 when he presented for private treatment, and his right toe pain was characterized at that time as a new condition. Moreover, the Veteran denied pain during VA pain assessments in February 2001, February 2002, August 2002, February 2003, August 2003, July 2004, March 2005, September 2005, September 2007, September 2008, and April 2009, supporting that the Veteran did not having chronic right toe or foot pain. In further support of that argument, a July 2004 VA treatment note indicates that the Veteran was on medicine for arthritic pain involving right shoulder, knee, and occasionally lower back, but there is no mention of right foot pain. Similarly, in various statements in conjunction with his initial 2002 claims for VA compensation benefits, the Veteran reported various current disabilities, but not a right foot disorder. While the Veteran did mention a foot injury in those earlier statements, he did not assert a claim for benefits or otherwise indicate a current right foot disability related to that prior in-service injury or event. Regarding the Veteran's assertion of surgery on the right foot in service, the Board similarly finds that his statements lack credibility due to inconsistencies. The Board notes that in an undated statement apparently submitted to the National Personnel Record Center sometime in 2004 in conjunction with a request for the Korea Defense Service Medal, he claimed he had surgery on the left foot, and not the right foot, in service. Also significant are private eye treatment records dated in the 1990s documenting the Veteran's past surgical history. In December 1992, the Veteran reported a prior septal deviation operation but did not report any prior foot surgery. Then, in March 1995 and May 1996, he reported a history of right knee and right ankle surgery, but again, did not mention any right foot surgery. Lay statements made while medical treatment was being rendered may be afforded high probative value, and statements made for the purpose of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Thus, if the Veteran actually had a 50-year history of right foot or toe problems, as he now asserts, he would likely have reported it upon presenting for treatment for his right toe in October 2009, or would have reported it while discussing other joint pain during earlier VA treatment. However, at the time of the initial October 2009 report of right toe pain the Veteran failed to mention any history of longstanding right toe or foot symptoms. His current assertion of chronic symptoms since service was not made until his initial November 2009 right foot service connection claim. Similarly, had the Veteran undergone right foot surgery during service, the Board finds it likely he would have reported such surgery in relating his prior surgical history in the 1990s. Given the foregoing, the Board accords little probative weight to the Veteran's lay statements in general, including statements offered regarding the course of his right foot symptoms. The foregoing notwithstanding, there continues to be no medical opinion relating the Veteran's current right foot disorders to his period of active service. Thus, even if the Veteran's assertions of in-service and post-service symptomatology are true, the assertions do not substantiate his claim for service connection for his currently-diagnosed right foot disorders. As previously noted, the Veteran is not competent to create the requisite nexus between his current disorders and service. In summary, the preponderance of the evidence is against service connection for a right foot disorder, diagnosed as osteoarthritis, hallux rigidus, and hammertoe. The evidence also preponderates against a finding that arthritis manifested within a year of service. As such, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 54-44. ORDER Service connection for a right foot disorder is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs