Citation Nr: 1334979 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-26 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for residuals of a left foot injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1954 to April 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In February 2013 and again in July 2013, this claim was remanded for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). While the case was in remand status, service connection for bilateral hearing loss was granted. The case has been returned to the Board and is ready for further review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). FINDING OF FACT The Veteran's current left foot disorder is not related to in service treatment for left foot complaints. CONCLUSION OF LAW The criteria for service connection for residuals of a left foot injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 20098, prior to the initial unfavorable AOJ decision issued in June 2009. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. It also provided notice with respect to disability ratings and effective dates. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claims and providing him with a VA examination. The Veteran's service treatment records, VA treatment records, and the report of VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claim. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes that the examiner reviewed the claims file, noting relevant documents in the file and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. The examiner then provided findings that were pertinent. There is nothing to suggest that the examiner's findings were incomplete or inconsistent with the other medical evidence contained in the claims file. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) or in the presumptive period 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). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that service connection is warranted for residuals of a left foot injury in service. The service treatment records show that he was treated in February 1955 for pain in the arches after he slipped with a duffle bag in October 1954 and had swelling at that time. He complained of stiffness and painful arches. He was also seen for pain in both ankles and it was noted that he had fallen arches. After service, VA records show that the Veteran was seen in April 2003 and hammer digit. A June 2003 he underwent pre-op for toe surgery. for status post arthroplasty left third toe with internal fixation a few weeks prior. The rod was accidently bumped and the Veteran complained of pain in the left foot. X-rays showed hammertoe deformities of the second, fourth and fifth toes as well as status post surgical intervention of the third digit including osteotomy of the distal portion of the third proximal phalanx and K-wire insertion. In December 2004 he was noted to have an abnormal sensory diabetic foot examination. In February 2006 he underwent additional left foot surgery. In July 2006 he complained of left Achilles tendon pain and in October 2006 he underwent left Achilles tendon surgery. The Veteran was examined by VA in August 2013. The claims file was reviewed. The examiner noted that the Veteran had hammer toes, and a left Achilles tendon tear. The Veteran's history was reviewed. X-rays were normal. The examiner opined that the acquired hammer toes and left traumatic Achilles tendon tears were not caused by or the result of service. The examiner noted that the Veteran was evaluated for possible pes planus as acute bilateral arch pain in February 1955 that resulted in a foot clinic consult not caused by or result of injury and that the foot clinic failed to diagnose and provided no treatment for bilateral arch pain. It was noted that he completed service without further complaint or treatment noted. The examiner stated that the Veteran was diagnosed with left foot hammer toes in 2003 or 46 years after service. The examiner stated that there is no nexus established to the current claim of left foot condition to service. It was noted that this included the acquired hammertoes 46 years after service that is solely the natural progression of that disease and shows no relationship to bilateral single episode or arch pain in service that did not require treatment and resolved. It was stated that the Achilles tear shows no nexus to service and is solely related to after service trauma that was not caused by or aggravated by any service-connected or claimed service connected conditions. The Board finds that the Veteran's claim cannot be granted. It is noted that he was treated in service for left foot complaints and that he currently has a diagnosis of left foot disabilities. However, the claims file does not contain competent evidence showing that the Veteran has a left foot disorder that was incurred in service. There is no indication of any left foot complaint until many years after service, and there is no medical evidence associating the current left foot disorders with service. In fact the only evidence in the file regarding the etiology of his left foot disorders is a negative opinion offered by a VA examiner in 2013. The examiner reviewed the claims file and examined the Veteran. The examiner found that the left foot disorders were not related to service. The opinion offered is supported by rationale and stands uncontradicted in the record. The claim based on the evidence in the file must be denied as a medical nexus has not been found. As noted above, lay 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran is not competent to make a medical determination regarding the etiology of his left foot complaints. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis or a medical nexus between the disorder and the Veteran's period of service. Further, to the extent that the Veteran's statements were offered in this case as evidence of "continuity of symptomatology" regarding the left foot injury sustained in service, the Board notes that "continuity of symptomatology" is "an alternative route for proving service connection for chronic diseases" which are specifically listed under section 3.309(a) of VA regulations. Walker, 708 F.3d at 1339. Hammer toes or Achilles tendon tear are not one of the chronic conditions that is listed under that section, and therefore that alternative route to establishing service connection does not apply in this case to this claim. Nevertheless, when the condition for which service connection is claimed may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, hammer toes or an Achilles tear might be the type of condition in some cases which, like the dislocated shoulder in Jandreau, may be capable of lay observation for the purpose of establishing a diagnosis. However, whether the current disorders are the result of the treatment in service is a medical matter requiring medical evidence for its support and resolution because it may require specialized testing. Therefore, medical evidence is required with regard to the nexus or connection of the current left foot disorder in this case with service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a left foot injury, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for residuals of a left foot injury is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs