Citation Nr: 1335641 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-31 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left big toe disorder. 2. Entitlement to service connection for a low back disorder, to include as due to a knee disorder. 3. Entitlement to right knee disorder, to include as due to a low back disorder. 3. Entitlement to service connection for a left knee disorder, to include as due to a low back disorder. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESSES AT HEARING ON APPEAL Appellant & L.H., R.N. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on the basis of a rating decision entered in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By its decision of July 2011, the Board determined that new and material evidence had been received to reopen previously denied claims for service connection for right and left knee disorders and denied claims for service connection for a joints disorder, claimed as a residual of a gonorrhea infection, and an initial compensable rating for a residual scar of the right auricle tip. The reopened claims for service connection for knee disorders were remanded to the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken; the issue of entitlement to service connection for a low back disorder was held in abeyance, pending the outcome of the claims for service connection for knee disabilities. This case was returned to the Board in August 2013 and the Board thereafter received an additional written statement from the Veteran, along with several items of documentary evidence which duplicate exactly those which were previously submitted to the RO in January 2013 and fully considered in the supplemental statement of the case issued in February 2013. On that basis, further action to permit the RO to consider that evidence is unnecessary. The issues of the Veteran's entitlement to service connection for right and left knee disorders, based on reopened claims therefor, and entitlement to service connection for a low back disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDING OF FACT 1. The Veteran sustained one or more inservice injuries involving his left big toe, but without chronic disablement resulting therefrom. 2. Notwithstanding evidence denoting inservice treatment of a left big toe injury, a preponderance of the evidence is against a nexus between any inservice left big toe disorder and current disablement of the Veteran's left big toe. 3. Degenerative joint disease of the left big toe is not shown in service or within the one-year period following the Veteran's discharge from active duty. CONCLUSION OF LAW A left big toe disorder was not incurred in or aggravated by service, nor may degenerative joint disease thereof be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Remand Compliance As indicated above, this matter was previously remanded by the Board in July 2011 in order to accomplish certain development, including the conduct of a specified VA medical examination. Of note, testimony was received in 2011 to the effect that the Veteran had been treated by a private physician, Dr. V., but on remand it was ascertained that Dr. V. was, in actuality, Dr. B., whose medical records and statements of medical opinion are contained within the Veteran's VA claims folder. All of the actions otherwise sought by the Board through its prior development request as to the matter herein addressed on its merits now appear to have been completed as directed, and it is of note that the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of a November 2008 letter from the RO to the Veteran, addressing his claim for service connection for a left big toe disorder. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice occurred prior to RO's initial adjudicatory action in January 2009, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled during postservice years. It further includes the Veteran's many written statements regarding the issue in question and a transcript of his videoconference hearing before the Board in June 2011. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. 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). The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and etiology of the disability in question. These evaluations were conducted in 2008 and 2012, from which detailed clinical findings were obtained as to the nature and etiology of his claimed left big toe disorder. The reports from these examinations and the record as a whole are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issue presented. As such, further development action relative to the disability herein at issue is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Analysis Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The requirement that there be a current disability is satisfied when the disability is shown at any time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 38 U.S.C.A. § 1154(b) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war and the claimed disease or injury is combat-related, lay evidence of inservice incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. In this instance, the Veteran does not allege, nor does it show, that the Veteran was engaged in combat against the enemy while in military service. To that extent, the pertinent provisions of 38 U.S.C.A. § 1154 are not for application. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A.§ 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Id., see also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's principal allegation, as reflected in his claim documents and hearing testimony, is that he sustained an injury to his left big toe in an inservice bicycle accident at night in Korea in or about 1987 or 1988. He further alleges that immediate medical treatment was received following that injury and that surgery was performed at a later point during his active duty in order to "clean up the bone," noting that x-rays had revealed bone spurs. No left big toe abnormality of the Veteran was shown on an enlistment medical examination in August 1987. Service treatment records indicate that medical treatment was received in January 1989 for a complaint of left toe pain of 35 minutes' duration, due to being stepped on during basketball play. X-rays revealed no fracture. The recorded assessment was of a musculoskeletal contusion. Later in January 1989, the Veteran complained of an ingrown toe nail of the left big toe and toenail removal followed, when it was further noted that there was a fungal infection of the left big toe. At the time of a periodic medical examination in May 1989, the Veteran reported that he was undergoing toenail removal procedures because of fungus. In April 1990, a further complaint of ingrown toenails of six months' duration was set forth; examination identified a severe fungal infection of the nails of the feet, alternately diagnosed as tinea and onychomycosis. Additional procedures for toenail removal followed. Following service, private medical treatment was received in April 2006 due to a four-day history of complaints of pain, swelling, and warmth of the left big toe. Clinically, erythema, edema, and warmth were present and x-rays revealed a hallux valgus deformity and degenerative joint disease of the first metatarsophalangeal joint. The Veteran was seen by VA on an outpatient basis in August 2008 because of left big toe pain, with notation of a fall into a ditch in Korea while in service and surgery to clean up the bone. The pertinent assessment was of left foot pain, with x-rays showing an early to moderate degree of hallux valgus and a large bony spur on the distal first metatarsal. VA medical examination of the left foot in December 2008 disclosed findings culminating in entry of diagnoses of a bunion and a postsurgical scar involving the left big toe or first metatarsal. In opining with respect to the nexus of the aforementioned entities to service, the VA examiner was unable to offer an opinion without resorting to mere speculation. The examiner noted that while there was evidence of a surgical scar, there was also no service documentation of any left big toe surgery, excepting toenail removal, or treatment related to the reported bicycle injury in Korea. The examiner further opined that it was unlikely that toe nail removal would cause a first metatarsal injury and it was speculative that the currently shown bone spur was the result of past trauma. The Veteran was noted to be emphatic in stating that he had inservice toe surgery and while it was noted to be possible that the inservice surgical records were not associated with the medical file, it was the examiner's opinion that it would be mere speculation to associate the documented left toe care in service to his current condition. If the question was presented as to whether the toenail procedures in service were related to the current first metatarsal disorder, the VA examiner determined that there was no relationship or causality due to military service. Of record is a medical report, dated in May 2011, from a private treating physician who indicated that the Veteran was being treated for osteoarthritis, without specification of the location. Such was noted to be caused and aggravated by physical activity, although the physician was unable to say when or how the Veteran developed his osteoarthritis. The same physician, as well as another physician in same practice, in December 2012 statements noted that the Veteran had been referred due to arthralgia and a positive antinuclear antibody test; the noted diagnosis was of osteoarthritis. Injections to the knee and shoulder were reported to be required. A history of recurrent trauma while in the military was noted and such could be associated with the Veteran's arthritis or contributory thereto in the physicians' opinions, albeit without any reference to involvement of the left big toe. In June 2011, the Veteran and a witness provided sworn testimony at a videoconference hearing before the Board. The Veteran offered testimony as to the inservice bicycle accident in which he sustained a left big toe injury when he fell into a concrete turtle ditch. He further testified to having had left big toe surgery while in military service in late 1988, following which he was relieved of duty for a two-week period and remained on crutches. The additional witness was a registered nurse and she testified that the Veteran's left big toe arthritis was attributable to inservice traumatic injury when he fell from a bicycle in a turtle ditch. Received by VA in June 2011 was an internet article submitted by the Veteran regarding secondary injuries as in one type of injury leading to another. No involvement of the left great toe was therein specifically referenced. A VA examination of the left big toe was conducted in March 2012, with entry of a diagnosis of a foot injury involving a reported bone chip of the left big toe in 1988. Clinically, a hallux valgus deformity of the left big toe was demonstrated with severe symptoms and impairment of function equivalent to its amputation. No prior surgery for hallux valgus was indicated. The VA examiner determined that it was less likely than not that the claimed disorder was incurred in or caused by the reported inservice injury, event, or illness. The examiner found that service treatment records demonstrated a minor contusion of the Veteran's left big toe in 1989, requiring only a single medical visit without residual effect or necessitating further treatment. No bone chips or surgery were described. Regarding the hallux valgus deformity of the left big toe, such was noted to be caused by structural abnormalities, trauma resulting in non-healing fractures, misaligned surfaces, hyperflexibility of foot structures, and inflammatory disorders. From the VA examiner's viewpoint, the Veteran had no fracture or other trauma significant enough to cause that deformity. There was likewise found to be no support to any contention of aggravation as to hallux valgus, as it did not appear until many years after service. Also indicated was that the Veteran had been previously treated for inflammatory arthritis unrelated to military service, that began many years after service. The basis of that opinion was the absence of evidence of that process in service to trigger or aggravate it. Received by VA in January 2013 were statements from the Veteran's spouse and mother in which the Veteran's osteoarthritis and degenerative bone disease and related effects are referenced, but without any specific notation of involvement of left big toe. The Veteran's spouse and mother alleged a causal relationship between the noted entities and military service and indicated that a treating physician had found it likely that they were because of military service. Review of the evidence presented indicates that there is evidence both for and against entitlement. The Veteran has credibly and consistently described the occurrence of an inservice bicycle injury involving his left big toe, such that the Board concedes that the alleged injury occurred, despite the absence of any reference to that injury within the entirety of the Veteran's service treatment records. The record also documents the occurrence of a left big injury in early 1989 when the Veteran was playing basketball. Nonetheless, this case turns largely on the effect(s) of those injuries and it is determined that a preponderance of the evidence is against a finding that the Veteran's inservice left big toe injuries bear a nexus to current disability of his left big toe. The Veteran's account of inservice surgery for a bone spur of the left big toe is not corroborated by service treatment records or any other item of evidence, excepting his own statements. Inservice toenail removal procedures due to fungus are documented, but medical opinion evidence fails to link those procedures to any showing of current disablement, including but not limited to any fungal or other type skin disorder affecting the left big toe. That is not to say, however, that current disability is not demonstrated. Rather, the record amply documents toe scarring, a bone spur, a hallux valgus deformity or bunion, and degenerative arthritis of the left big toe or first metatarsophalangeal joint, but a preponderance of the evidence is against service origination of any of the foregoing or the proposition that any is otherwise attributable to service. No arthritic involvement is identified in service or within the one-year period after release from active duty. In fact, no current disability is shown in service treatment records or in postservice medical data until 2006, approximately 16 years following service discharge. The Board takes note of the fact that a prolonged period without documented medical complaint or finding can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxon v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was proper to consider a veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. No medical professional has linked toe scarring, a bone spur, or a hallux valgus deformity to service or any event thereof. Regarding arthritis, testimony of the registered nurse at the Board hearing was to the effect that traumatic inservice injury may have led to its onset, but the rationale for that opinion was lacking and no explanation was offered for the absence of any documented complaint or finding of left toe pathology for so many years after service, causing the Board to discount its persuasiveness. Far more equivocal medical opinion evidence is offered by two treating physicians as to the linkage in this case of traumatic injury and the onset of arthritis, inasmuch as neither specifically opines as to the etiology of the Veteran's left big toe arthritis or, for that matter, any other disorder of the Veteran's left big toe. The more definitive and persuasive evidence is that provided through the VA examinations in 2008 and 2012, notwithstanding the VA examiner's opinion in 2008 that an etiology opinion could not be provided without resorting to mere speculation. That examiner nevertheless determined that the toenail removal procedures in service were not the basis of current disablement of the left big toe, and it was the examiner's opinion in 2012 that the claimed left big toe disorder was not service-related, noting as well that the trauma in service was not of sufficient severity as to result in the Veteran's hallux valgus deformity. On the basis of the foregoing, the Veteran's allegations with respect to the service incurrence of a left big toe disorder, to include as a result of inservice injuries, are outweighed by the evidence to the contrary. A preponderance of the evidence while indicating the occurrence of one or more inservice left big toe injuries is against a showing of any current disability of the left big toe having its origin in service or any applicable presumptive period. To that end, the claim advanced must be denied. ORDER Service connection for a left big toe disorder is denied. REMAND By this appeal, the Veteran also seeks service connection for disorders of each knee and his low back. He alleges that the knee disorders are caused by this low back disability and vice versa. Additional development was sought by the Board through its July 2011 remand, including a request for a VA examination and medical opinion. The Board specifically noted in its prior remand that a VA examiner in 2008 had failed to address the Veteran's preservice history of knee pain or an undated service record involving a complaint of aching and locking of each knee. On remand, the VA examiner in 2012 did not discuss the knee complaints at enlistment or their effect, if any, despite specific direction to address an undated service treatment record, reflecting knee complaints of five years' duration, which was to be assumed unless otherwise indicated to have been from May 1989. No such consideration was undertaken and remand for corrective actions is thus in order per Stegall. Moreover, in light of the Veteran's contention regarding an inservice low back injury and current disablement, and inasmuch as no VA examination of the low back has been conducted to date, remand to afford the Veteran a VA spine examination and to obtain a nexus opinion is found to be in order. Accordingly, this portion of the appeal is REMANDED for the following actions: 1. Obtain any pertinent reports of VA medical treatment, not already of record, for inclusion in the Veteran's VA claims folder. 2. Return the reports of a VA medical examination and opinion, dated March 19, 2012, to permit the examining VA medical professional to undertake a further review of the claims folder, prior to the preparation of an addendum to the earlier reports. That addendum should address specifically the questions of whether any disorder involving either knee preexisted the Veteran's entry onto active duty, and, if so, whether any such preexisting disorder underwent inservice aggravation. The Veteran's VA claims file must be furnished to the VA reviewer for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, the reviewing VA medical professional is asked to address the following questions, providing a complete rationale with citation to the record for the medical opinion furnished: a) Is the evidence wholly unequivocal (undebatable) that a disorder of either knee existed prior to service and did not undergo inservice aggravation? With regard to the service treatment records, the examiner is instructed to assume that the undated service treatment record (that reflects a complaint of aching knee for five years and locking knees when walking) is from May 1989, unless the examiner identifies a reason why a different date is more likely. b) If the answer to (a) above is in the negative, then is it at least as likely as not (50 percent or greater probability) that any currently diagnosed disorder of either knee began in or is otherwise related to the Veteran's active military service? c) If the answer to (a) above is negative, is arthritis of either knee shown within the one-year period immediately following service discharge in October 1990, and if so, how and to what degree was that arthritis manifested? The VA examiner is advised that the phrase as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of that conclusion as against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. Afford the Veteran a VA spine examination for the purpose of ascertaining the nature and etiology of a claimed low back disorder as a result of inservice injury. His VA claims file should be made available to the VA examiner for review in conjunction with the examination and the examination report should indicate whether in fact the claims folder was made available and reviewed. The examination should include a complete medical history, clinical evaluation, and all diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should be set forth. The VA examiner is also asked to provide a medical opinion as to the following, with full supporting rationale: a) Is it at least as likely as not (50 percent or greater probability) that any current low back disorder originated in service or is otherwise attributable to the Veteran's military service or a claimed low back injury therein? b) Is arthritis, if any, of the Veteran's low back shown within the one-year period immediately following service discharge in October 1990, and if so, how and to what degree was that arthritis manifested? Use by the VA examiner of the at least as likely as not language in responding is required. The VA examiner is advised that the phrase as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a conclusion as to find against that conclusion. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 4. Readjudicate the issues on appeal on the basis of all of the evidence of record and all governing legal authority. If any benefit sought on appeal is not granted, furnish to the Veteran a supplemental statement of the case and afford him a reasonable period in which to reply, before returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs