Citation Nr: 1336200 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-17 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral foot condition also claimed as pes planus. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran had an initial period of active duty for training (ACDUTRA) from March 1978 to August 1978, and served in the Georgia Army National Guard from November 1977 to March 1984. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for a low back disorder and bilateral pes planus. In December 2010, the Board denied the claim for pes planus and remanded the claim for low back disability for further evidentiary development. In October 2011, the Board again remanded the claim for low back disability. In December 2012, the Board vacated its prior denial of the claim for service connection for pes planus as the Veteran had requested a hearing on the appeal prior to that decision. At this time, the Board remanded the claims for a hearing on appeal in regards to the low back and foot claims, and issuance of a Statement of the Case on the issue of service connection for post traumatic stress disorder (PTSD). The Board notes that the claim for PTSD is not on appeal at this time and, as such, consideration of this claim by the Board is not warranted. The Board has recharacterized the pes planus claim on appeal to more broadly reflect the benefit sought. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In June 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal, except as to the June 2013 hearing transcript associated with the electronic file. FINDINGS OF FACT 1. A bilateral foot disorder to include pes planus resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA, is not shown. 2. A low back disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA, is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disability claimed as pes planus are not met. 38 U.S.C.A. §§101(22)-(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a)-(c), 3.303 (2013). 2. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§101(22)-(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a)-(c), 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA satisfied its duty notify in this case. VA provided to the Veteran fully compliant VCAA notice in a February 2007 letter prior to the adverse decision from which this appeal arises. VA further satisfied its duty to assist the Veteran. All relevant medical records have been obtained and associated with the record to include records from the Social Security Administration (SSA). VA afforded the Veteran a VA medical examination in response to the low back claim. Although VA did not provide the Veteran an examination of the feet in regards to his claim, the Board finds that a VA examination is not required here as there is no credible lay evidence or competent medical evidence indicating that the Veteran had pes planus in service or any current foot disorder associated with service. 38 C.F.R. § 3.159. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). The Board previously remanded the issues on appeal for additional development to include affording the Veteran a VA examination of his back. The Board has reviewed the record and finds substantial compliance with the requirements articulated in the Board's prior remand decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA further provided the Veteran a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation: (1) explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ identified the issues on appeal, asked questions and elicited testimony in order to substantiate the claims, and accepted testimony and medical evidence on the matter of nexus. The VLJ inquired as to the existence of outstanding medical evidence. The Veteran was assisted at the hearing by his representative. The hearing focused on the elements necessary to substantiate the claims. The Board finds substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board will address the merits of the claim. II. Claims for Service Connection The Veteran seeks service connection for bilateral foot condition (pes planus) and a low back disability. He avers that these disorders had there onset in service. He reports that he sustained an injury to the feet and while on active duty and continuity of symptoms since that injury. He reported in June 1989 that he did not seek treatment for his conditions because he is unable to work and cannot afford medical care. In November 2006, on VA Form 21-526, the Veteran reported that he had sustained pes planus and back injury in March 1978. At his June 2013 hearing on appeal, the Veteran again reported that he sustained low back injury and pes planus from injury in service. He reported numerous treatment visits in service at Moncrief Hospital in Fort Jackson, but no post service treatment as he could not afford this. The Veteran stated that he was fired from his job with Nationwide Auto Parts because of his back problem. He also indicated that he had no problems with his feet prior to service; problems began with running in service. He reported treatment in service and being told that he had fallen arches, treated with an arch support. He reported that he is now treated for his feet at Augusta VA. When asked what kind of treatment he was receiving, the Veteran responded "Nothing really right now because I got to get my diabetic shoes. You know, they're going to fix me up to have shoes for me..." Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The term "Veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2013); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2013). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2013). Thus, with respect to the Veteran's Army National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112, (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2013). However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Bilateral Foot Condition Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a bilateral foot disorder to include pes planus. A bilateral foot disorder to include pes planus resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA, is not shown. Service treatment records show no complaints of, treatment for, or a diagnosis of foot disorder to include pes planus. Medical examinations dated in November 1977, May 1978 and September 1981 show normal clinical evaluation of the feet. Additional service treatment records chronicle other complaints and injuries, but there are none pertaining to his feet. Army National Guard records show that the Veteran was discharged for failure to achieve satisfactory weight loss. VA medical records dating from May 2008 reflect no complaints of or treatment for foot disorder to include pes planus. The problem lists associated with these records show no foot disorder. The evidence of record shows no foot disorder to include pes planus during ACDUTRA or following the Veteran's release from the Army National Guard. The Board accepts that the Veteran is competent to report an injury, symptoms, onset of symptoms, and treatment. Layno, supra. See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). In this regard, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), at 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, in this case, the Veteran is not competent to diagnose himself as having a chronic disorder to include pes planus in service or now that is etiologically related to his reported injury to the foot in service as this is not susceptible to lay observation, unlike a broken leg. Id. See also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion). Furthermore, to the extent that the Veteran suggests having a foot disorder related to injury incurred while on ACDTURA and symptoms since then, the Board finds that he is not credible in view of the normal clinical evaluations in May 1978 and September 1981. Furthermore, on his claim for foot disorder (pes planus), the Veteran reported that pes planus began in March 1978, but the Board finds that this is incongruous with his denial of foot trouble on a medical history given in May 1978. As the Veteran is an inconsistent historian, his report that a bilateral foot disorder to include pes planus had its onset during ACDUTRA in 1978 has no probative value. Because no current disability is shown, or shown during the pendency of this claim, the claim for service connection must be denied. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). But See McLain v. Nicholson, 21 Vet. App. 319 (2007). To the extent that the Veteran reports foot symptoms, the Board notes that he has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show current disease or injury to account for this complaint. The Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Accordingly, as the weight of the evidence is against the claim, service connection for a bilateral foot disorder claimed as pes planus must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.304. Low Back Disability Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a low back disability. A low back disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA, is not shown. The Veteran served on ACDUTRA from March 1978 to August 1978, and served in the Georgia Army National Guard from November 1977 to March 1984. Service treatment records show that, in June 1978, the Veteran presented for complaints of thoracolumbar back pain of one week duration after a "log on log drill." It was noted that the condition did not exist prior to service. The impression was thoracic back pain. The plan was hot packs and flexion/extension exercises and was treatment for low back pain in June 1978. An August 1978 note reflects that the Veteran complained of lower back pain after strenuous lifting. Objectively, there was tenderness to touch. The assessment was "muscular." The plan was heat and "ASA." Report of period examination dated in September 1981 reflects normal clinical evaluation of the spine. A VA physician assistant wrote a letter dated in March 2008 on behalf of the Veteran, which indicated that "He has history of Degenerative Joint Disease and Hypertension." On his April 2008 VA pension application, the Veteran reported that he sustained injury to the upper and lower back in April 1978. VA medical records dated since 2010 show that chronic low back pain on the Veteran's problem list along with other disorders to include morbid obesity. Report of VA examination dated in January 2011 reflects a comprehensive review of the Veteran's medical documented history and interview of the Veteran. By history, the Veteran reported onset of back pain in 1978 after performing "log drills" in basic. He stated that he "twisted his back." He stated that he was able to finish basic training and complete his National Guard obligation until March 1984. The Veteran indicated continued back problems after service and seeing an orthopedic surgeon around 1984 to 1987. Physical evaluation was performed. The impression was chronic lumbosacral strain, degenerative arthritis of the thoracolumbar spine based on history, exam, and x-ray report from 2010, and history of radiculopathy with no objective findings. MRI showed mild disc bulging at L4-5, left-sided foraminal encroachment, and mild facet degenerative changes. The physician opined that "it is less likely as not (less than 50/50 probability) that the veteran's current spine condition was caused by his period of active duty status" because, as explained in an April 2011 addendum, a review of the claims file showed no "significant back problems following the initial report of back complaints after the log drill or for many years after release from active duty." The physician explained as follows: There was an entry dated 6-7-78, in which the veteran had back pain after the log drill and the examination was reported as normal. There was also another entry of 8-2-78 of complaints of low back pain. The veteran was able to complete his obligation and remained in the service until 3/84. No significant entries in the record concerning back problems were reported until over 20 years later. An SSA disability determination reflects that SSA benefits were awarded based on a primary diagnosis for personality disorder and a secondary diagnosis for sprains/strains of all types. The medical records associated therewith include private medical records dated in 1988 and 1989. A private hospital record dated in July 1988 reflects a diagnosis for possible slipped disc; an x-ray of the lumbar spine showed no fracture, dislocation, or focal bone abnormality-MRI was suggested if herniated disc was considered. An August 1988 private hospital record shows a diagnosis for possible lumbosacral strain. A letter dated in January 1992 to SSA from a rehabilitation services worker reflects that the Veteran had enrolled in the Community Mental Health Center in April 1989 with complaint of lost job, financial problems, and "back pain from back injury received on the job..." A December 2007 SSA psychiatric evaluation conducted after the Veteran filed his claim with VA reflects a history of "back problems and pinched nerve in which he was hurt in the military." In summary, while the evidence of record reflects that the Veteran sustained an injury to the back in service, it does not establish that any currently shown back disability is as likely as not due to disease or injury incurred in or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. Report of periodic examination dated in September 1981 reflects normal clinical evaluation of the spine and the first documented findings for abnormal lumbosacral pathology are shown many years after service in 1988, which the Veteran related in 1992 to a back injury received on the job. This coupled with the negative VA medical opinion dated in January and April 2011 weighs against the claim. The Board accepts that the Veteran is competent to report injury to the back, his treatment, and symptoms. Layno, supra. Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra. at 1377 (Fed. Cir. 2007); see Buchanan supra. However, to the extent that the Veteran reports that any back disorder shown during the appeal period is etiologically related to the injury or complaints noted during ACDUTRA or National Guard service, the Board finds that the Veteran is not competent to opine in this regard as he lacks any particular medical expertise or training, and this relationship is not susceptible to lay observation, unlike a broken leg. See Jandreau, supra; see also, Davidson supra. Furthermore, his suggestion of continuity of back symptoms since his 1978 injury are not credible in view of report of periodic examination dated in September 1981, which shows normal clinical evaluation of the spine, coupled with the many years intervening ACDUTRA, the first documented findings for abnormal lumbosacral pathology in 1988, and the Veteran's 1992 report of having back problems since a work-related injury. Therefore, the Veteran's statements have diminished probative value. The Board assigns greater probative value to the service treatment records showing essentially normal clinical findings at the time of the 1978 injury and normal clinical evaluation in September 1981, along with the negative VA medical opinion dated in January and April 2011. The Board finds that the service treatment records are more probative because they reflect findings contemporaneous with the injury and soon thereafter as prepared by a medical professional. The Board further finds that the VA medical opinion is highly probative as it was prepared by a skilled, neutral, medical professional after reviewing the claims files, obtaining a medical history from the Veteran, and conducting an examination. The VA opinion is also probative because the examiner supported the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, there is no favorable medical opinion in the record to weigh against this opinion. The weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Accordingly, the claim is denied. ORDER Service connection for bilateral foot disorder to include pes planus is denied. Service connection for a low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs