Citation Nr: 1335674	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-02 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a bilateral foot disorder (claimed as flat feet).



WITNESSES AT HEARING ON APPEAL

Veteran & his spouse


ATTORNEY FOR THE BOARD

S. M. Kreitlow



INTRODUCTION

The Veteran had active military service from March 1978 to September 1982 and December 1982 to May 1998.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued in August 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Veteran and his spouse appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in February 2013.  A copy of the transcript of this hearing has been associated with the claims file.  

The Board also notes that, given the Veteran's testimony at the hearing that he has some type of foot disorder but not necessarily flat feet as he originally claimed causing his foot problems, the Board has recharacterized the issue of entitlement to service connection to be for a bilateral foot disorder (claimed as flat feet) in order to encompass all possible foot disorders that the Veteran may have.  The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  

The issue of entitlement to a compensable disability rating for service-connected chronic calluses, bilateral feet (IPK/intractable plantar keratosis), has been raised by the record (see letter from Veteran received in September 2013), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  




FINDING OF FACT

The Veteran does not have any foot disorder other than his service-connected chronic calluses (also diagnosed as intractable plantar keratosis or IPK) of the bilateral feet.


CONCLUSION OF LAW

Service connection for a bilateral foot disorder (claimed as flat feet) is not warranted.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance Requirements

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The duty to notify was met is letters provided to the Veteran in February and March 2008.  

The duty to assist has also been met.  All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained.  The Board acknowledges that, in September 2013 (more than 30 days after the issuance of the last Supplemental Statement of the Case), the Veteran submitted a statement with a VA Form 21-4142 relating to a private treating physician records for his feet on which he identified treatment from December 2007 to January 2008 and December 2009 to March 2012.  At the February 2013 Board hearing, the Veteran submitted treatment records from this private treating physician dated from September 2009 through March 2012.  None of these private medical records show treatment for any foot disorder other than the Veteran's already service-connected chronic calluses of the bilateral feet (diagnosed as IPK-Keratoderma in these records).  The Board finds that efforts to obtain any identified earlier treatment records would not be necessary as they would not likely result in any evidence to support the present claim before the Board but, rather, would merely show more treatment for the Veteran's service-connected chronic calluses.  The Veteran has not identified any other evidence available but not obtained.  Therefore, the Board finds that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  The Veteran was afforded VA examination on his claim in June 2008, August 2012 and August 2013.  The Board acknowledges that the Veteran has requested a VA examination by a podiatrist, and the Board attempted to comply with such request in its June 2013 remand by requesting that a new VA examination be given by a "Podiatrist, if feasible."  The August 2013 VA examination does not appear to have been conducted by a podiatrist.  The Board finds, however, that, under the presumption of regularity, the VA Medical Center would have provided an examination with a podiatrist if one was feasible and, since it did not do so, that examination by a podiatrist was not feasible.  Upon review of the examinations provided the Veteran, however, the Board finds them to be full and complete examinations that take into consideration the Veteran's reported history and contentions, the in-service and post-service treatment records, as well as the physical findings upon a full physical examination of the Veteran.  All opinions provided are based upon a review of the full record, consideration of the Veteran's reported history, and provided complete and thorough rationales.  Furthermore, although the Veteran questioned how the opinion of the VA examiner, who was not trained as a podiatrist, could be taken over the podiatrist who treated the Veteran in-service, the Board notes that his question is based upon his belief that the podiatrist in service diagnosed him to have flat feet, which as is explained in more detail below, that is not established by the evidence.  In addition, flat feet is not such an uncommon or medically complex condition that a regular physician could not diagnose such a condition and a specialist would need to be consulted.  The Board does not find, therefore, that any of the VA examiners were not qualified to examine the Veteran and render a diagnosis merely because they are not podiatrists.  Consequently the Board finds these examinations to be adequate upon which to render a decision.  See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

VA has satisfied its duties to inform and assist the Veteran; he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 

II.  Analysis

Service connection means that the facts establish 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 during service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record."  Walker at 1334.

A second way to establish direct service connection is set forth in § 3.303(b).  In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases.  "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease.  By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought.  In short, 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. at 1335-36.

In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is 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."  Id. at 1336.  The term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted.  Id. at 1336-39. 

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  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, 1377 (Fed. Cir. 2007).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.   38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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).  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.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

In January 2008, the Veteran filed his current claim for service connection for flat feet (also claimed as "fallen arches").  As discussed in the Board's previous decision issued in June 2013, this claim was previously denied in a final July 1999 rating decision.  In the June 2013 decision, the Board found that new and material evidence had been submitted to reopen the claim for service connection for flat feet but found that additional development was necessary before adjudicating the merits of his claim.  It remanded the Veteran's claim for additional development to include asking the Veteran to provide additional information as to treatment for his bilateral feet disorder(s) and for a VA examination to be provided.  Such additional development has been substantially accomplished and, therefore, the Board may proceed to adjudicate the Veteran's claim without prejudice to him.

It appears the Veteran is confused as to what bilateral foot disorder was diagnosed in service and what he currently has, which led to the recharacterization of his claim in the June 2013 decision and as noted in the Introduction.  In a May 2008 statement, the Veteran said that he was initially treated for plantar warts in service from March to June of 1991, but upon being seen in Podiatry in September 1991, he was "diagnosed with falling arches and given a medical order for custom inserts.  After numerous podiatry appointments my corns and callouses were shaved down.  The inserts corrected my foot structure and pressure points where the corns/callouses would form.  The inserts finally wore out and my corns callous returned."  He further stated that he was "currently under the care of a Civilian Podiatry clinic who has prescribed inserts to correct falling arches."  In his July 2009 notice of disagreement, the Veteran again stated that he was "diagnosed with flat fleet by a military doctor in the podiatry clinic."  In his VA Form 9 dated in January 2010, the Veteran stated that the doctor in the podiatry clinic "stated that I had a misalignment of the bones in my feet [due] to the inadequate footwear provided by the military.  I have a chronic condition that he identified as flat feet.  Now I read in the answer to my appeal that the proper name is IPK which is Intractable meaning that it will not go away.  I am tired of hobbling around everyday.  I say Flat feet you say IPK.  Do I need to file a new claim for IPK[?]"  

At the Board hearing in February 2013, the Veteran initially testified he was told by the podiatrist who treated him in service that he had flat feet; however, later on he testified that he actually did not know what to call it because he acknowledged his feet are not considered flat because of the measurements they take, but rather that his bone alignment is not right is what he had been told.  See hearing transcript, pg. 10.  He testified that he does not know what to call that but the inserts he gets pushes his arches up and makes his bones realign so that he is not putting the pressure on the pressure points.  Id. pg. 11.  

Finally, in a September 2013 statement, the Veteran begins by saying that he is "writing to appeal the decision to not rate my service-connected foot problem."  He then goes on to set forth the same history as above.

It is clear from the Veteran's statements on the VA Form 9, at the February 2013 Board hearing and in the September 2013 letter, that he does not understand what is wrong with his feet and what is causing his problems.  Consequently, the Board finds that the Veteran's statements as to what is the problem with his feet are not credible.  Rather it finds that the medical evidence of record is the most competent, credible and probative evidence as to what problem(s) the Veteran's has relating to his feet.

The service treatment records show the Veteran was first treated for complaints of a corn on the bottom of his right foot in March 1991, which was assessed as plantar warts, and he continued to be treated for plantar warts through June 1991.  In September 1991, the Veteran underwent a consultation at the Podiatry Clinic.  On examination, there was no sign of warts.  Rather the Veteran was assessed to have calluses at the first and fifth sub metatarsal, which were debrided and orthotics were recommended.  He was seen in December 1991 for follow up and it was noted he was using Spenco orthotics that had helped although he continued to have nucleated keratoma at the right first and fifth sub metatarsals.  On follow up in April 1992, the Veteran continued to complain of nucleated lesions at the first and fifth right metatarsal heads but related improvement with orthotics.  Objectively there were nucleated lesions as described and no accommodations to the forefoot pad.  The assessment was nucleated tyloma.  The lesions were debrided and the Veteran was sent for accommodation to the forefoot pad and regularizing of the forefoot pad.  In May 1992, the Veteran reported return of his painful calluses.  Examination showed he had very tender nucleated keratome at the sub metatarsal first and fifth heads on the right foot and at the fifth head on the left.  His supports fit well but no accommodation as instructed at the last visit had been made.  The assessment was IPK, bilateral feet.  Similar findings were made on follow up in July and August of 1992.  The Veteran separated from active service in September 1992.

The Board notes that none of the service treatment records show that the Veteran demonstrated symptoms of or was diagnosed to have flat feet.  Moreover, no examination conducted during service, especially in June 1992, demonstrated a finding that the Veteran had bilateral flat feet or any other problem with his feet.  Rather the service treatment records demonstrate that the only problem the Veteran had with his feet during service was chronic calluses (also diagnosed as IPK).

In the rating decision on appeal issued in August 2008, the Veteran was granted service connection for chronic calluses of the feet, which was evaluated as zero percent disabling, effective June 20, 2008.  The claim for service connection for flat feet, which had previously been denied in a final July 1999 rating decision, remained denied.  Consequently, the Veteran has been service-connected for the bilateral chronic calluses for which he received treatment for in service as noted in the service treatment records.  That issue is not before the Board.  Rather the issue is whether the Veteran has any other bilateral foot disorder for which service connection may be warranted.  The Board finds that he does not.

Post-service medical evidence consists of private treatment records from September 2009 through March 2012 and VA examination reports from June 2008, August 2012 and August 2013.  None of these records show that the Veteran is diagnosed to have any disorder of the feet other than his service-connected bilateral chronic calluses.  The private treatment records show a diagnosis only of IPK-Keratodoma.  There is no evidence that the Veteran has any other foot disorder, especially flat feet.  In fact these treatment records show the Veteran has proper alignment of the lower extremities and stable ankles, rearfoot, midfoot and forefoot joints to manual stress.  Stable foot posture is noted to be readily apparent bilaterally.  

Likewise, the findings on the VA examinations fail to show any other foot disorder other than the Veteran's service-connected bilateral chronic calluses.  Although the June 2008 VA examiner found the Veteran had some limitation of motion of the bilateral ankles with pain on manipulation of the feet, the remaining physical examination, as well as the X-rays, were negative for evidence of bilateral flat feet or any other disorder.  Thus, her diagnosis was chronic calluses.  The August 2012 VA examiner also failed to find evidence of flat feet and diagnosed the Veteran to have callus formation of the feet.  Finally, the August 2013 VA examiner (who also conducted the August 2012 examination) again found the Veteran had no evidence of flat feet.  Rather he noted that the Veteran had a fall of the transverse arch causing pressure on the metatarsal heads creating pressure and causing his calluses.  In concluding, the examiner stated that the Veteran has no other foot abnormality other than the calluses.  

Consequently, the Board finds that the medical evidence fails to demonstrate that the Veteran has any foot disorder, including flat feet, other than his already service-connected bilateral chronic calluses.  Hence, the Board must find that service connection for a bilateral feet disorder is not warranted because the preponderance of the evidence is against finding that the Veteran has a disability that is subject to service connection that has not already been service-connected.  In making this decision, the Board acknowledges the Veteran's reports of pain in his feet.  However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  Furthermore, it is clear from the medical records that the pain in the Veteran's feet is the result of his service-connected bilateral chronic calluses.  Thus, the Veteran's pain is more aptly considered in rating that service-connected disability, which issue is not presently before the Board, than the granting of service connection for a separate disability.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Therefore, service connection for a bilateral feet disorder other than service-connected bilateral chronic calluses is denied because the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted.  

ORDER

Entitlement to service connection for a bilateral foot disorder (claimed as flat feet) is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs