Citation Nr: 1336563 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-38 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a bilateral foot nerve disability, to include as secondary to service-connected lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD) with right sciatica. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision, by the Oakland, California, Regional Office (RO), which, among other things, denied the Veteran's claim of entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD) with right sciatica. On November 17, 2011, the Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. In February 2012, the Board remanded the case for further evidentiary development. The Appeals Management Center (AMC) completed the requested development and issued a supplemental statement of the case (SSOC) in December 2012. Review of the record reflects substantial compliance with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDING OF FACT A bilateral foot nerve disability is not shown to be related to the Veteran's military service or to his service-connected lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD) with right sciatica. CONCLUSION OF LAW A bilateral foot nerve disability was not incurred in or aggravated by service, and any such disorder is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in June 2006 from the RO to the Veteran which was issued prior to the RO decision in January 2007. Additional letters were issued in October 2010 and February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination afforded the Veteran is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanations for the conclusion reached. The record reflects that a VA neurological examination was scheduled in April 2012 but the Veteran failed to report to the examination without good cause. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) the regulation provides that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The Veteran's failure to attend the April 2012 VA examination without a showing of good cause constitutes a failure to cooperate in the development of his claim and has resulted in the Board's weighing the available evidence of record, absent any additional medical nexus opinion, in adjudicating his claim. See 38 C.F.R. § 3.655. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. As the Veteran failed to report for his scheduled neurological examination without a showing of good cause, the Board is to adjudicate the claim for service connection for a bilateral foot disorder based on the evidence of record. 38 C.F.R. § 3.655. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The record indicates that the Veteran served on active duty from February 1974 to May 1975. His separation certificate (DD Form 214) reflects that his military occupational specialty was parachute rigger. The service treatment reports (STRs) reflect that the Veteran was seen in sick call in July 1974 with complaints of recurring low back pain; he was diagnosed as having low back strain, with no evidence of herniated nucleus pulposus. The Veteran was again seen in February 1977 for complaints of severe back pain. In November 1977, low back pain was diagnosed. The STRs are negative for any findings or diagnoses of a bilateral foot nerve disability. The Veteran's initial claim for service connection for a bilateral foot disorder (VA Form 21-526) was received in March 2006. Submitted in support of the claim were VA progress notes dated from January 2005 to April 2006. These records do not reflect any complaints or clinical findings pertaining to a bilateral foot disorder. The Veteran was afforded a VA examination in December 2006. It was noted that the Veteran injured his back in the basic training on an obstacle course. His back pain was present 70 percent of the time and it radiated into the buttocks. It was the same for him to stand or walk. He had difficulty bending, stooping, crouching, crawling, climbing and balancing. He was able to walk about a quarter of a mile. He did not use a brace, cane or crutch. He worked doing outside sales and was looking at a job where he would only carry a laptop and would not have to carry samples. He had trouble walking up and down stairs and up and down inclines. On examination, it was noted that the Veteran was able to walk on his toes and walk on his heels. Sensation was within normal limits. The pertinent diagnosis was chronic low back pain, more likely than not due to degenerative disc disease, moderate, with associated degenerative joint disease, moderate. By a rating action in January 2007, the RO granted service connection for degenerative disc disease and degenerative joint disease, lumbosacral spine; a 20 percent disability rating was assigned, effective March 29, 2006. Received in August 2007 were VA progress notes dated from December 2006 to June 2007. These records show that the Veteran received clinical attention and treatment for his low back disorder. During a clinical visit in May 2007, the Veteran complained of pain along the right sacroiliac joint with some pain radiating down the buttocks and the lateral aspect of his right thigh, to his knee and occasionally radiates down to his ankle. On physical examination, straight leg raising was normal. He did have tight hamstrings bilaterally. There was some pain on flexion and extension of his right leg. The diagnosis was low back pain with sciatica. When seen in June 2007, the Veteran again complained of low back pain which sometimes radiates to his right buttock. He denied any weakness in the lower extremities with some numbness in his right calf. He stated that his pain was worse and more persistent now, and it has now become constant. Strength was 5/5 except for dorsiflexion of bilateral feet which was 4/5, limited by pain. Sensation was subjectively decreased along the medial aspect of the right calf. Reflexes were 2+ in the patellae and Achilles bilaterally. The assessment was chronic low back pain and disc disease. Received in February 2010 were radiology reports dated from December 2006 to November 2009. On the occasion of a VA examination in November 2010, the Veteran indicated that he used a cane and recently self-prescribed and purchased a rolling walker. He did not, however, use any corrective shoes or orthotics nor a wheelchair or other assistive devices. On examination, it was noted that the Veteran had a slow, slightly unsteady gait when he walked, and he was able to stand on his toes and heels. He was able to squat one quarter of the way with pain in the legs and back. He had an antalgic gait because of pain in the back. Motor power was 5/5 in both lower extremities, and there was no gross sensory deficit to be demonstrated in the lower extremity. The deep tendon reflexes were within normal limits. Babinski was negative bilaterally and there was no ankle clonus. The Veteran reported some numbness in his feet. He stated that this was caused by wearing size 13 boots while he was in the Air Force during basic training and he had size 15 feet. The examiner stated that there were no objective sings of hypesthesia in the feet. At his personal hearing in November 2011, the Veteran indicated that he began experiencing problems with his feet during basic training; he stated that the boots issued to him were too small and caused him to have pain and unbalanced. The Veteran related that he went to sick call because he was unable to feel his feet. The Veteran testified that his foot condition was caused by wearing boots that were too small and his back condition. The Veteran was afforded a VA examination in April 2012. At that time, it was noted that he has not been able to work since being involved in an auto accident four years earlier that caused neck pain. He had extensive treatment for his neck and was offered surgery, but he declined. It was also noted that the Veteran had been using a cane due to low back pain; he also had impaired standing and walking balance. The examiner noted that the Veteran's lumbar spine condition was already service connected; he noted that the Veteran injured his back in basic training on an obstacle course. He was treated on numerous occasions for back pain and had had back pain ever since. The Veteran reported current and constant low back pain that radiated behind both thighs and caused feelings of numbness behind the thighs. The Veteran, however, denied any loss of sensation in the lower extremities. The low back pain was worse when he stood and walked. He had difficulty bending, stooping, crouching, crawling, climbing and balancing. He had no muscle atrophy in the lower extremities and had good strength. Muscle strength testing in the hip, knees, ankles and toes was normal. No muscle atrophy was noted. Deep tendon reflexes were normal in the knees and ankles. Sensory examination was normal, except for decreased sensation to light touch in the left lower leg. Straight leg raising was negative. The examiner stated that the Veteran needed a cane, grab bars and shower bench due to impaired balance that was most likely due to cervical myelopathy. The examiner stated that he was unable to explain impairment of balance due to low back/lumbar spine condition. In an addendum to the above VA examination, dated in October 2012, the VA examiner stated that he had "not been told what complaints [his] neurological evaluation reveals S1 radiculopathy with slight decreased sensation behind the calf and also significant sensory impairment of the feet[;] however, the [V]eteran had impaired balance, which cannot be explained on the basis and etiology of the lumbar spine." The examiner stated that he believed that it was more likely that the feet problems were due to the cervical myelopathy. He further noted that the Veteran's complaints regarding his feet were not due to the lumbar spine condition. III. Legal Analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a claimant must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Service connection may also be established for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Prior to October 10, 2006, the provisions of 38 C.F.R. § 3.310 directed, in pertinent part, that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Court clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). There has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995) (which allowed for secondary service connection on an aggravation basis), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Upon review of the evidentiary record, the Board concludes that service connection is not warranted for a bilateral foot disorder, including a nerve disorder of the feet. The Board observes that there is no evidence of a bilateral foot disorder during the Veteran's military service. STRs do not show any in-service complaints, findings, or diagnoses of a bilateral foot disorder. Moreover, the first mention of neurological symptoms involving the feet was in June 2007, nearly 32 years after active service. The remaining question, therefore, is whether there is probative evidence of a relationship between current disability and service or a service-connected disease or injury. There is no probative evidence of record linking a foot disorder to his service or to a service-connected disease or injury. The only probative medical opinion of record is against the Veteran's claim. Significantly, in an addendum opinion, dated in October 2012, the VA examiner opined that it is more likely that the feet problems are due to the cervical myelopathy. He further noted that the Veteran's complaints regarding his feet are not due to the lumbar spine condition. Although the Veteran attributes his foot disorder to his service connected DDD and DJD of the lumbar spine with sciatica, the Board may discount lay evidence when appropriate. Although the Veteran can attest to factual matters of which he has first-hand knowledge, e.g., difficulty hearing, neither he nor any lay affiant is capable of making medical conclusions. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). There is no evidence showing, and the Veteran does not assert, that he has medical training to provide competent medical evidence as to the etiology of the claimed bilateral foot condition manifested by numbness and decreased sensation in his feet. Here, we find his assertions to be of less value than the contemporaneous records during service and the October 2012 VA examiner's opinion. Although the evidence of record shows that the Veteran has a foot disorder, the Board finds that the more convincing evidence shows that his disability was not manifest during service and is not attributable to his service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine with sciatica. The evidence does not establish that the Veteran had a bilateral foot nerve disease or injury during active service or that his bilateral foot nerve disability is otherwise related to active service. Accordingly, a bilateral foot nerve disorder was not incurred in or aggravated by service. Also, the evidence shows no relationship between the Veteran's bilateral foot disability and his service-connected lumbar spine disorder. Hence, a bilateral foot nerve disability is not proximately due to or the result of a service-connected disease or injury. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. Service connection for a bilateral foot nerve disability is denied. ORDER Service connection for a bilateral foot nerve disability, to include as secondary to service-connected lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD) with right sciatica, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs