Citation Nr: 1335096 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-21 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1948 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a transcript from a September 2013 hearing before the undersigned. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issue on appeal. 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 left foot disorder is not causally related to his military service. CONCLUSION OF LAW A left foot disorder was neither incurred nor aggravated during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. VA notified the Veteran in November 2009 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, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Under 38 U.S.C.A. § 5103A(d) and its promulgating regulation, 38 C.F.R. § 3.159(c)(4)(i), a VA examination is necessary in a claim for service connection when there is not sufficient competent evidence to decide the claim and there is: (1) competent evidence of a current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; and (3) an indication that the current disability may be associated with an in-service event. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As analyzed below, the Board concedes that the Veteran has established the first two elements, however, because the Veteran's claim of continuity of symptomatology is inconsistent with the record, the Board finds that there is insufficient evidence to indicate that the Veteran's current disability may be associated with his military service. Thus, VA's duty to provide an examination is not triggered. Although the Veteran has identified some service treatment records that are not associated with the claims file, a January 2010 formal finding noted that some service treatment records may have been destroyed by a 1973 fire at the National Personnel Records Center. VA fulfilled its duty to assist the Veteran by obtaining all identified and available evidence needed to substantiate a claim and, as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Legal Principles Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that his left foot disorder is related to his military service. While not all service medical records are available, a September 1957 separation history and examination shows that the Veteran denied ever having a history of foot trouble or lameness. Clinical evaluation revealed normal lower extremities and feet. A pertinent diagnosis was not entered. In May 1994, the Veteran filed a claim of entitlement to non-service-connected disability pension, claiming that his left leg, among other ailments, contributed to his disability. He did not submit any medical evidence showing a then current left foot disability. The pension claim was denied after the Veteran failed to respond to further VA requests for development. VA medical records reveal that the appellant is a diabetic, and that he requires diabetic footwear. An October 2006 VA medical record shows that at a diabetic footwear consultation, the Veteran reported that he did not experience numbness, tingling, burning, tickling or an "asleep" foot. The examiner noted a "trace" edema. The Veteran made no comments about his left foot, and did not report a history of left foot problems since service. A December 2008 VA medical record shows that at a diabetic foot examination, the Veteran again did not comment on his left foot. A complete foot examination did not note any problems associated with the Veteran's left foot. In a September 2009 VA medical record, the Veteran complained of a one week history of severe left leg pain radiating to the foot. Physical examination did not yield an opinion linking a left foot disorder to service. In November 2009, the Veteran claimed entitlement to service connection for a left foot disorder, asserting that it began in 1948, the same year he entered service. At a March 2012 hearing, the Veteran stated that he believed that in-service marches carrying heavy packs had caused his left foot problem. The Veteran noted that while in service he sought treatment for foot pain two or three times, and that he frequently took Tylenol for the pain. The Veteran noted that he used orthotics for diabetic foot pain. At a September 2013 hearing, the Veteran stated that he injured his left foot soon after entering service and suffered with left foot pain for his remaining years of service. During the road marches-consisting of 50 minutes of running followed by 50 minutes of walking-his left foot would reportedly become painful and "that fallen arch, it started just flappin' by itself." Reportedly, the pain prevented him from marching at times. The Veteran reportedly visited the hospital twice but decided that seeking medical care was futile since they only gave him aspirin. After service, the Veteran continued to take aspirin, but did not seek medical treatment. The Veteran noted that he continued to experience severe foot pain. The Veteran is competent to state that he suffers from left foot pain, and that he also suffered from left foot pain while on active duty. There is, however, absolutely no competent evidence linking any current left foot disorder to service, and as such, service connection must be denied. The Board will address the elements of service connection in turn. First, the Veteran has left foot pain. In the September 2009 VA medical record, the Veteran reported severe pain in his left foot. At his March 2012 and September 2013 hearings, the Veteran stated that he continued to experience severe left foot pain. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's reports of left foot pain appear credible. Significantly, however, pain alone is not a disability, and the Board finds that the Veteran has not shown that actually has a current left foot disorder. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Second, the Veteran is competent to state that he injured his left foot in service. The Veteran noted in the September 2013 hearing that during marches his left foot was painful and the "f1allen arch...started just flappin' by itself." The appellant, however, as a lay person who is not trained in the field of medicine is not competent to diagnose a disability due to, for example, fallen arches or to pes planus (i.e., flat feet). Further, assuming that the appellant's foot pain is due to diabetic neuropathy, or radiculopathy caused by a low back disorder, as the evidence suggests, the Veteran lacks the competence to link these disorders to service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 . The Most significantly, there is no competent medical evidence of a causal relationship between service, to include any alleged in-service injury, and any current left foot disorder. The Veteran contends that an in-service injury is related to a current left foot pain. 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. Gabrielson v. Brown 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Here, there is a lengthy period of time between the Veteran's discharge from service and a documented complaint regarding his left foot. In May 1994, the Veteran filed for non-service-connected disability pension and included left leg problems among his ailments. It is not clear whether this left leg complaint was associated with the Veteran's left foot. If it was related, this is about a 37 year gap. If it was not related, the next evidence of a left foot complaint does not appear until September 2009, about 52 years after service. In either case, the gap between separation from service and a left foot complaint is significant. Maxson v. West, 12 Vet. App. 453, 459 (1999). In the September 2013 hearing, the Veteran argued that he did not seek post-service medical treatment because he did not believe civilian doctors would be able to help him. This is inconsistent with the evidence of record, namely, the September 2009 VA medical record where the Veteran sought medical treatment for severe left foot pain. The Veteran also contends that he has continuously experienced pain in his left foot during and after service. The appellant's separation examination history and report, however, specifically shows that the appellant denied ever having a history of foot problems, and clinical examination at that time revealed normal feet. At diabetic foot examinations in October 2006 and December 2008, the Veteran failed to mention any history of ongoing left foot pain since service. Indeed, in a September 2009 VA medical record, the Veteran reported that he had only been experiencing foot pain for one week. It must be recalled that statements made to physicians for purposes 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, 10 Vet. App. at 73. Accordingly, the Veteran's assertions in support of his claim for service connection are inconsistent with the evidence of record and hence they are assigned minimal probative value. Therefore, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's left foot disorder is causally related to service. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left foot disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs