Citation Nr: 1334915 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-08 549A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for arthritis of the right big toe (a "right toe disability") REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1963 to March 1967. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The Board found no records within the electronic file system not presently found in the paper file. FINDINGS OF FACT 1. The Veteran is currently diagnosed with arthritis of the right big toe. 2. The Veteran's arthritis of the right big toe did not have onset during service or within one year of separation. CONCLUSION OF LAW The Veteran's arthritis of the right big toe was not incurred in, aggravated by, or can be presumed to be due to active air service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1131, 1137, 5103(a), 5103A (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all evidence of record. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, for a veteran to establish service connection, the record must demonstrate (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship (or nexus) between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under an alternative theory, the veteran can establish service connection for a disability if he has certain chronic diseases, such as arthritis, that are (1) either shown in service or may be presumed to have incurred in or aggravated by service if the disease manifests to a compensable degree within one year of discharge, and (2) there is evidence of subsequent manifestations of the same chronic disease or injury at any later date, however remote, absent clearly attributable intercurrent causes. See 38 U.S.C.A. 1101, 1112, 1131; 38 C.F.R. 3.303(b), 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By treating all subsequent manifestations as service connected, the veteran is relieved of meeting the nexus requirement found in the general standard. In order to be afforded this relaxed standard, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. In the adjudication of the veteran's claim, 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. Private treatment records support a current disability of right big toe arthritis. In May 2009, at the Veteran's initial appointment with a podiatrist, he was formally diagnosed with arthritis of the right big toe as evidenced by April 2009 x-rays of the Veteran's right foot revealing degenerative changes in the metatarsal joint of the Veteran's right big toe. The evidence of record fails to show an injury or active arthritis that could be associated with his current disability during service or within one year from service separation. In the Veteran's April 2010 direct appeal to the Board, he alleged that his right foot became entangled in the tailgate of a troop carrier while unloading from the vehicle. He added that he was evaluated by a doctor, but was told to continue walking since nothing appeared to be broken. He alleges right foot pain ever since. The service treatment records indicate an incident, similar to what the Veteran described, occurring in September 1966. During this incident, the Veteran sprained his right ankle when getting out of a troop carrier. X-rays taken of the Veteran's right ankle and foot close in time to the incident revealed no signs of fractures or degenerative changes. At no point during the initial September 1966 examination or subsequent October 1966 evaluation did the Veteran complain of any pain targeting his right big toe. Furthermore, the military medical personnel did not indicate that his ankle sprain was attributable to any right big toe pain. The Board examined the remainder of the Veteran's service treatment records to find injuries or general evidence of arthritis that could be related back to his current disability, and found none. At the Veteran's December 1966 separation examination, the only issue he noted associated with swollen and painful joints was his 1966 sprained right ankle. He reported the sprain healed well without any complications or sequela. The Veteran's subjective statements are confirmed by the December 1966 medical examination report finding the Veteran's feet within normal limits, providing evidence against this claim. The Veteran's six remaining examinations prior to his actual March 1967 discharge were for hemorrhoids and a sexually transmitted disease and did not discuss any bone or joint issues related to his right big toe, providing more evidence against this claim. With the absence of an in service occurrence, the Board reviewed the Veteran's post-service treatment records for evidence of manifestations of arthritis affecting his right big toe within a year of the Veteran's March 1967 discharge and found none. The earliest post-separation treatment records are from August 2008, more than 47 years post service. The earliest post-separation treatment records discussing the Veteran's right big toe arthritis come nearly a year after that in 2009, more than 48 years post-separation. Without an in service injury or disease, there can be no nexus to the Veteran's current disability. Even assuming the Veteran suffered a right big toe injury from the September 1966 in service incident, the evidence of record fails to support chronicity of symptomology needed to satisfy service connection on a presumptive basis. With the absence of complaints from the Veteran during service and 40-plus years post-service, such an injury would be considered acute at best. Importantly, the Veteran himself has reported intercurrent causes to his podiatrist as the cause for his right big toe arthritic pain other than military service: During the May 2009 initial appointment with the podiatrist, the Veteran stated that his toe pain began first in the early 1990s after jamming his right toe getting out of a truck and was aggravated after a March 2009 sprain. These intercurrent causes break any presumable links between the Veteran's arthritis and the in service injury. In other words, the Veteran has provided highly probative factual evidence against his own claim. In conclusion, the Board finds that the preponderance of the evidence weighs against a finding of service connection for arthritis of the right big toe. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board will next consider whether the VA met its duties to notify and assist the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VA met its duty to notify the Veteran in substantiating his benefit claim pursuant to the VCAA. Upon receipt of a complete or substantially complete application for benefits, the VA is required to notify the claimant and his representative of any information, including medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This notice requirement applies to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO alerted the Veteran to the information and evidence necessary to substantiate his service connection claim in a June 2008 written notice. The notice also included information that the Veteran is expected to provide and what information the VA would attempt to obtain on the Veteran's behalf. In response to the VA's June 2008 written notice, the Veteran contacted the RO and identified additional sources that the VA should obtain information from in support of his claim, which were obtained. The Board finds that the June 2008 notice satisfied the VCAA requirements with respect to the Veteran's claim and no further notice is required. The VA also met its duty to assist the Veteran by obtaining all available relevant evidence to the Veteran's claim. To that end, the VA obtained the Veteran's service personnel records, service treatment records, and post-service VA treatment records. The Board acknowledges that the VA did not provide the Veteran a medical examination related to his current service connection claim, and under the circumstances is not required to order one. The VA must provide a medical examination, if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant), (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability, and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); see 38 C.F.R. § 3.159(c)(4)(i); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The determinative issue involves the second prong, medical nexus. Although there is evidence of a current disability, the record is silent as to in service complaints and/or treatment related to the Veteran's claim. The Veteran's lay statements of medical nexus do not constitute medical evidence sufficient to require such an examination. Waters, 601 F.3d at 1276; see Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in service injury, disease, or event, the VA is not obligated to provide a medical examination). Furthermore, since there is no in service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current service connection claim. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). Since neither the Veteran nor his representative made the RO or Board aware of any other relevant evidence that would need to be obtained, the Board finds that no further development is required. ORDER Entitlement to service connection for arthritis of the right big toe is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs