Citation Nr: 1335968 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-05 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from October 1980 to October 1985. The Veteran also served in the Navy and Army reserves from 2000 to 2003, with a period of inactive duty training from April 21, 2001 to April 22, 2001, and active duty for training from July 29, 2002 to August 5, 2002. The matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran filed a notice of disagreement in April 2009 and was provided with a Statement of the Case in December 2009. The Veteran perfected her appeal with a February 2010 VA Form 9. The Veteran testified before the undersigned in March 2012. A copy of the transcript has been associated with the claims file. In November 2012 the claim was remanded by the Board for further development. 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 VA treatment records dated August 2008 to June 2009 and November 2009 to October 2012. The other records are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran's bilateral foot disability is a result of an injury or disease associated with her service. CONCLUSION OF LAW A bilateral foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(22), 101(24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a), 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements were accomplished in a letter sent in September 2008 prior to the initial rating decision. This letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, her service treatment records and her post-service VA and private treatment records have been associated with the claims folder. Furthermore, neither the Veteran, nor her representative, has identified records that have not been requested or obtained. The Board also finds that any concerns in light of Bryant v. Shinseki, 23 Vet. App. 488 (2010) are moot as the development necessary to substantiate the claim was ordered by the Board. The Veteran was provided with a VA examination in July 2013. The Board finds that the VA examination report is adequate because the examiner conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's bilateral foot disability in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Regarding the Board's November 2012 remand instructions for additional development of this issue, the Board concludes that there has not been substantial compliance. The Veteran's periods of active duty for training and inactive duty for training during her reserve service have not all been verified. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, as will be discussed, the July 2013 examiner concluded that the Veteran's bilateral foot disability was not related to her active service. Furthermore, the examiner concluded that the September 2002 diagnosis of extensor tendonitis was a single isolated acute event and never recurred. As such, the error is not prejudicial. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty. See 38 U.S.C.A. §§ 101(22), 101(24), 1131; 38 C.F.R. §§ 3.6(a), 3.303(a); see also Mercado-Martinez, 11 Vet. App. at 419; Laruan v. West, 11 Vet. App. 80, 84-86 (1998) (en banc), rev'd on other grounds, D'Amico v. West, 12 Vet. App. 264 (1999); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Brooks v. Brown, 5 Vet. App. 484 (1994). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that her in-service ankle injury and the physical demands of the military caused her current bilateral foot disability. The Veteran's December 1979 enlistment examination was negative for any complaints or diagnosis of bilateral foot pain. An April 1981 emergency room treatment record shows that the Veteran was treated for a right ankle injury. X-rays revealed no fractures and the Veteran was prescribed rest and elevation of the extremities. The Veteran's September 1985 separation examination is negative for any complaints or diagnosis of bilateral foot pain. On the report of medical history the Veteran marked swollen painful joints. A September 2002 private medical record shows that the Veteran described an aching and throbbing pain and stated that her feet had been giving her trouble for the past three to four months. She reported that her symptoms were worse when wearing her military boots. The physician diagnosed bilateral extensor tendonitis and excused the Veteran from wearing boots for a month. Post-service VA treatment records dated December 2004 to July 2008 show that the Veteran was treated for foot pain. A March 2005 X-ray revealed mild hallux valgus deformity on the right and mild degenerative changes to the first metatarsophalangeal joint on the left. An April 2005 treatment record shows a diagnosis of metatarsalgia and hallux valgus, asymptomatic. A January 2006 treatment record shows a diagnosis of metatarsalgia and a differential diagnosis of neuroma. An April 2008 treatment record shows that while seeking treatment for pharyngitis she was diagnosed with plantar fasciitis. A July 2008 treatment record shows a diagnosis of Morton's neuroma third interspace, right foot. On her August 2008 claim the Veteran asserted that the physical demands of the military contributed to overuse of her joints. She stated that extreme weather conditions, exposure, and other factors contributed to the breakdown of her body's muscles, joints, and bones. The Veteran reported that her injury happened around August 2002. The Veteran reported she was deployed to Ft. Polk for support. She stated that it was faster and easier to go through her private insurance than the military at the time. She reported that at the time she thought it was something minor with her feet. She reported that this was the incident that caused a crippling affect, affecting her ability to walk. She also reported that she did not file a report about this incident. In a September 2008 statement the Veteran reported that she had been trying for years to get help with her feet. She reported that she had been able to manage her pain for several years with lots of Ibuprofen and soaks. On her April 2009 notice of disagreement, the Veteran reported that she did lots of running while in the Army from 1980 to 1985. She reported that the main problem arose while she was in the reserves in Ft. Polk, Louisiana. She reported that her feet started being very painful. She reported that military police were not encouraged to go to sick call and that it was frowned upon. She reported that from 1980 to 1985 she ran in all types of weather. She reported that she was the pace setter for her company. The Board notes that the Veteran has a current bilateral foot disability and evidence of an in-service injury. As such, the only question remaining is whether the Veteran's current bilateral foot disability is related to her in-service injury. On her April 2009 notice of disagreement, the Veteran also stated that she believed the stress of running in extreme weather in boots and in full flight jackets, along with weapons, on all terrains caused her feet problems. The Veteran also reported that she was 5ft6 and 107 pounds and asserted her foot pain was not caused by her weight. In February 2010 the Veteran submitted several internet articles regarding neuroma, metatarsal stress fractures, and peripheral neuropathy. In a February 2010 statement the Veteran asserted that not all in-service incidents are reported. She stated that her feet injuries were kept at bay because she was no longer wearing combat boots and no longer running. She also stated that her bilateral foot condition resurfaced aggressively when she was a reservist stationed at Fort Polk, Louisiana. In March 2012 the Veteran testified at a Board hearing. The Veteran asserted that she was injured in April 1981 supporting the guarding of the Cuban refugees at Fort Chaffe, Arkansas. The Veteran reported during this riot she injured her right ankle. The Veteran reported her injuries were aggravated again in September 2002 when she was deployed to Fort Polk Louisiana. The Veteran asserted her in-service right ankle injury caused her current bilateral foot disability. In a January 2013 statement the Veteran reported that during her deployment to Fort Polk, Louisiana, she had a very bad case of swollen ankle, feet, and joints. She reported that her right, leg, ankle, and foot were very swollen and extremely painful. The Veteran was afforded a VA examination in June 2013. The examiner concluded that it was less likely than not that the Veteran's foot conditions were related to her military service and more likely as not related to normal wear and tear, weight, activity level, lifelong foot wear choices, and genetics. The examiner stated that the Veteran's foot condition was metatarsalgia and subsequent formation of Morton's neuroma as verified by several podiatrists. The examiner stated that metatarsalgia and Morton's neuroma are closely related. He stated that if there is pressure on the nerves in the foot at the metatarsal head, pain is the result. If the process goes on long enough, and is severe enough, small benign tumors, Morton's neuromas, may develop on the involved nerves. The examiner noted that the Veteran's initial podiatry visit resulted in a diagnosis of extensor tendonitis. The examiner opined that this may have been an accurate assessment although over the years this was never diagnosed again. The examiner reasoned that this was the Veteran's first visit to the podiatrist and her pain was new so her foot process may have not yet evolved to the point where the diagnosis of metatarsalgia could be established. The examiner stated that if extensor tendinitis was an accurate diagnosis then it was a single isolated acute event and never recurred. The examiner also concluded that it was less likely as not that the Veteran's military boots were to be incriminated. He noted that while ill fitting footwear can certainly be a cause of metatarsalgia and Morton's neuroma, the Veteran was wearing other civilian footwear also during this time. He stated that if her condition was caused by her service boots it would have cleared with wearing other shoes. He also stated that if her foot condition was caused by military boots it would have shown up sometime in the previous 20 years. The examiner noted that her foot symptoms did not improve when her podiatrist took her out of her boots. In regards to the diagnosis of plantar fasciitis, the examiner noted that along the way the Veteran picked up the diagnosis. He noted that the Veteran was being seen for a sore throat and metatarsalgia was listed in her history. He noted that the Veteran told the doctor about her feet being sore at the time and noted he did not see any indication that the doctor examined her feet. He concluded that the diagnosis just suddenly appeared. He stated that while plantar fasciitis is a common foot condition it usually does not present, as in the Veteran's case. He stated that he would disregard the diagnosis and suggested that the doctor meant continued metatarsalgia as this fit her symptoms, is known to be present, and is an ongoing process for the patient. The examiner concluded that the Veteran never had plantar fasciitis symptoms. The examiner also concluded that it was even less likely that the Veteran's current foot condition is related to her distant ankle injury. He noted while they both involve the lower extremity, they are far apart in function and anatomy. He stated that it is even less likely as not they are related when it is remembered that her ankle injury was in 1981 and her foot condition did not start until 2002 or 2003. He also noted that her ankle injury was unilateral and her metatarsalgia has been bilateral. In a September 2013 statement the Veteran asserted that her feet disability was caused by her military service and not normal wear and tear, activity level, lifelong foot wear choices, and genetics. She asserted that she made smart choices in footwear and that her family has a history of strong healthy people. She reported that her brothers, who both served in the military, have ankle, feet, and leg disabilities, for which one is service-connected. The Veteran also asserted that her reservist service activated her old ankle injury and cited one of the internet articles she submitted, concerning a nerve that travels from the ankle into the foot, as support. The Board finds that the opinion of the July 2013 VA examiner is persuasive and probative evidence against the claim for a bilateral foot disability because the opinion is based on a review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The examiner provided a detailed rationale for why the Veteran's bilateral foot disability is not related to service. He discussed why the Veteran's bilateral foot disability was not related to her in-service right ankle disability or military boots. He also discussed the significance of the 20 year time lapse between the Veteran's in-service incidents and the first complaints of foot pain as it relates to medical principles regarding the feet. Thus, the Veteran's contention that her foot disability had its onset in active service and then "resurfaced" during her reserve service is not plausible and therefore not credible based on sound medical principles discussed by the examiner. He also provided a detailed rationale for why the Veteran did not have plantar fasciitis. The examiner also fully explained why, if the diagnosis of extensor tendonitis was correct in September 2002, it was a single, isolated, acute event that never recurred and therefore, was not a chronic disorder. The examiner also provided other likely causes for the Veteran's disability, to include normal wear and tear, weight, activity level, lifelong foot wear choices, and genetics. The Board also finds this opinion to be credible because it is consistent with the evidence of record regarding the Veteran's lay statements, in-service injuries, and post-service medical evidence. Thus, the medical opinion evidence shows that the Veteran's current bilateral foot disability is not etiologically related to her period of active service. Also, as the VA examiner did not find that the Veteran's current bilateral foot disability was related to wearing military boots, the Veteran cannot prove she became disabled from an injury incurred during a period of ACDUTRA or INACDUTRA including in August 2002 or September 2002. See Smith v. Shinseki, 24 Vet. App. 40, 48 (2010); 38 U.S.C.A. § 101(24)(B); Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). The Board has considered the Veteran's lay statements that relate her current bilateral foot disability to service. The Veteran contends that her current foot disabilities are continuing disease processes of ankle and foot problems she claims had their onset in service. The Board cannot find the Veteran's lay theory credible in light of the VA medical expert's opinion. The lay evidence is outweighed by the medical expert opinion evidence of record. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's foot disability is etiologically related to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Whether the right ankle injury the Veteran experienced in service, or running in military boots in all types of weather and on all types of terrain during her active service and reserve service are in any way related to her current bilateral foot disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's assertions regarding the etiology of her current bilateral foot disability are not competent medical evidence and are afforded little probative value. Finally, the Board acknowledges that the Veteran submitted several internet printouts, as previously discussed, regarding metatarsalgia, neuroma, and peripheral neuropathy. The Board notes that the internet articles provide generic statements regarding these conditions. In regards to the article about neuroma, the information provided supports the July 2013 examiner's conclusions about the cause of neuromas. In regards to the information concerning the nerve that runs from the inside of the ankle to the foot, or tarsal tunnel syndrome, the Veteran is not diagnosed with tarsal tunnel syndrome. The article regarding metatarsalgia also supports the examiner's statements about the cause of metatarsalgia. Finally, in regards to the article about peripheral neuropathy, the Veteran is not diagnosed with peripheral neuropathy. The Board notes that the Veteran submitted a prescription for medication to treat her nerves. However, the prescription does not show a diagnosis of peripheral neuropathy or show what nerves are being treated. As such, the articles are not probative in supporting the Veteran's claim. Significantly, the articles address general medical information and are not specific to the facts pertaining to the Veteran's case. Unlike the articles, the VA medical opinion addresses the specific facts pertaining to the Veteran's case and so has more probative value. In summary, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable, and the claim for service connection for bilateral foot disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Good job on providing reasons and bases for the denial and addressing the Veteran's arguments, including her submission of articles. The case had a reserve service component that needed to be adjudicated which given counsel's experience would not be expected to recognize. ORDER Service connection for a bilateral foot disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs