Citation Nr: 1337413 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-23 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a right foot disorder, other than residuals of fractures to the 3rd and 4th toes of the right foot. 2. Entitlement to service connection for arthritis of the lumbar spine, hips, and knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned Veterans Law Judge in September 2012. A transcript of the hearing is of record. This appeal was remanded by the Board in November 2012 and May 2013 for further development and is now ready for disposition. The Veteran's claim for service connection for a foot disorder was originally claimed as one for a bilateral foot disorder. While he was granted service connection for residuals of fractures to the 3rd and 4th toes of the right foot in an April 2013 rating decision, whether service connection for any other right foot disorder remains on appeal. However, in a subsequent September 2013 decision, he was also granted service connection for a plantar calcaneal bone spur on the left foot. The Board construes this grant as a full grant of the benefit sought on appeal related to his left foot disorder. Thus, the issue has been recharacterized as above. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Claims for service connection for a disorder to the temporomandibular joint (TMJ) and for a total disability rating based on individual unemployability due to service-connected disability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A right foot disorder, other than residuals of fractures to the 3rd and 4th toes of the right foot, was not shown in service or for many years thereafter, and is unrelated to active duty service. 2. Arthritis of the lumbar spine, hips, and knees was not shown in service or for many years thereafter, and is unrelated to service. CONCLUSIONS OF LAW 1. A right foot disorder, other than residuals of fractures to the 3rd and 4th toes of the right foot, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. Arthritis of the lumbar spine, hips, and knees was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. Specifically, this letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished and that therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's VA outpatient treatment records. While the RO determined that most of his service treatment records were unavailable, the Board is satisfied that a diligent effort was made to acquire them. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claims. VA examinations with respect to the issues on appeal were also obtained in December 2012 and August 2013. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge in September 2012. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the nature and claimed etiology of his foot disorder, and was also able to clarify the nature of his arthritis claim. Finally, it is reiterated that this appeal was remanded by the Board in November 2012 and again in May 2013 for further development. Specifically, the Board instructed the RO to obtain the Veteran's VA treatment records, and to afford the Veteran VA examinations relating to the issues on appeal. The Board is now satisfied there was substantial compliance with the collective remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the evidence of record now includes VA treatment records, and Veteran was provided VA examinations in December 2012 and again in August 2013, which the Board finds collectively adequate for adjudication purposes. After the required development was completed, the issues were readjudicated and the Veteran was sent a supplemental statement of the case in September 2013. Accordingly, the Board finds that the Remand directives were substantially complied with and that therefore there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Service Connection The Veteran claims entitlement to service connection for a right foot disorder other than residuals of fractures to the 3rd and 4th toes of the right foot which, at his hearing before the Board in September 2012, he explained was due to poorly fitting boots that he wore during service. Also on appeal is the claim for service connection for what has previously characterized as generalized arthritis. However, at his hearing, he stated that this claim was specifically directed toward symptoms he experiences in the lumbar spine and lower extremities resulting from an in-service motor vehicle accident. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, a relationship between the present disability and the disease or injury incurred or aggravated during service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). Arthritis is one such disorder, and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will also be presumed for arthritis if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). As for any other disorder raised by the evidence of record, evidence of continuous symptoms since active duty remains a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The development undertaken by the AOJ indicates that the Veteran's service treatment records are substantially unavailable. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). After a careful review of the pertinent evidence, the Board finds that service connection is not warranted for either of the claims on appeal. As an initial matter, although the Veteran's service treatment records are unavailable, there is no alternative indication that the Veteran sought treatment for a foot or joint disorder in service. In fact, at a VA examination in August 2013, he stated that he did not recall seeking treatment for a foot disorder while in service. Moreover, while he stated at his hearing in September 2012 that he hurt his back in service, he did not indicate that he actually sought treatment for this disorder while on active duty. The Board is willing to accept as true the Veteran's recollections that he was involved in a minor motor vehicle accident in service. However, based on his statements to the Board and VA examiners, the Board is also able to infer from his statements that there would have been no clinical indication that this incident resulted in an actual in-service injury. In fact, the post-service evidence does not reflect symptoms related to arthritis in any joint or a right foot disorder for many years after the Veteran left active duty service. Specifically, the evidence does not indicate arthritis in any joint until a private physician diagnosed osteoarthritis in the left knee in October 2004. While the Veteran also sought treatment for a spasm in his right shoulder in December 1998, there was no indication of any disorder to the shoulder joint itself. There is also no evidence of a right foot disorder, other than the fractures to the 3rd and 4th toes, until he submitted his claim for benefits in October 2008. In addition, degenerative arthritis in the first metatarsal-phalangeal joint was first diagnosed in August 2013. In both cases, the Board emphasizes that this first indication of any of the disorders on appeal is approximately 45 years after he left active duty. As such, a continuity of symptoms is not shown based on the clinical evidence for either of the claimed disorders. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 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 this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose musculoskeletal disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus require a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has already conceded that the Veteran has experienced right foot pain since active duty, and has also conceded that he was involved in a motor vehicle accident in service. However, the presence of actual disorders since active duty cannot be similarly acknowledged. First, as a VA examiner in August 2013 stated, the Veteran's right foot complaints were "nonspecific" and were limited to "aching at the end of the day after prolonged weight bearing." There has been no indication that his stated symptoms were related to the degenerative changes in the first metatarsal-phalangeal joint, and there is no other apparent right foot disorder that has been observed. Therefore, while Board finds that the Veteran's statements regarding nonspecific foot pain since active duty are credible, the evidence does not indicate that his complaints are actually related to any diagnosable disorder. Moreover, the Board also determines that the Veteran's reported history of continued arthritis symptomatology since active service, while competent, is nonetheless not credible. In making this determination, 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). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Indeed, even though he has submitted a claim asserting that he injured his back in service, he has on other occasions admitted that he could not remember when his symptoms began. For example, at his hearing in September 2012, he stated that his back pain began "quite a few years ago," but he did not truly assert that they have been persistent since active duty. Moreover, at his VA examination in August 2013, he stated that he was bruised during active duty, but that there was no actual injury to a joint. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically, the Board places significant value on the opinions of VA examiners in December 2012 and August 2013 who were specifically directed toward the claims on appeal. Regarding the Veteran's right foot claim, the VA examiner in December 2012 noted that the Veteran reported no specific injury to his right foot, either during or after active duty service. While several of the toes of his right foot had apparently been broken in the past, there was no tenderness in the heel or arch in the foot itself. At the August 2013 VA examination, the VA examiner noted that, even though the Veteran complained of ill-fitting boots in service, there were no indications that he ever sought treatment for this disorder. Moreover, the examiner noted that the Veteran's symptoms were "nonspecific" and that his symptoms of generalized aching were present only after the end of a day of prolonged weight bearing. This, in the examiner's opinion, was a "common symptom after prolonged weight bearing. Moreover, there was "no evidence that this aching resulted from foot pathology." The examiner also pointed out that there were no findings of symptoms, such as tenderness or deformity, which could be related to poorly fitting boots. When asked to provide a specific opinion regarding the relationship between his foot symptoms and active duty, the examiner checked a box in the disability benefits questionnaire (DBQ) indicating that it was "at least as likely as not" that the Veteran's foot disorder was related to service. However, the supporting rationale clearly indicates that this box was selected in error, and that the VA examiner's actual opinion was that the Veteran's right foot symptoms were less likely than not related to service. The Board also notes that, while the Veteran has been diagnosed with degenerative changes in the first metatarsal-phalangeal joint, he has not indicated symptoms in the joint, nor has any treating professional indicated that there was a relationship between this specific disorder and active duty service. As for the Veteran's complaints of arthritis, a VA examiner who reviewed these complaints in December 2012 observed upon examination that the Veteran's right leg was slightly rotated outward. This examiner also observed tenderness over the right trochanteric bursa region and mild limitation of motion in the lumbar spine. X-rays indicated mild degenerative changes in the knees, hips, and low back, all of which were consistent with the Veteran's age. After the examination was completed, the examiner opined that it was less likely than not that any of these disorders were related to active duty service. In providing this opinion, the examiner reflected that bursitis of the hip can result from a wide variety of activities, such as injury to the point of the hip, overuse, incorrect posture or other similar etiologies. Moreover, there was no indication in his medical history suggesting any cause of his symptoms other than age-related degenerative arthritis. At the more recent VA examination in August 2013, the VA examiner also opined that it was less likely than not that the degenerative changes in the Veteran lumbar spine were related to service. In providing this opinion, the examiner reflected that, not only was there no record of any injury in service, but the Veteran also admitted that he did not specifically injure the spine. Rather, in the Veteran's words, the injury was limited to bruising for which no medical attention was required. Instead, the examiner believed that the degenerative changes in the lumbar spine were also age related. The Board finds that these examinations are collectively adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted physical examinations. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his claimed arthritis and right foot disorder to his active service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of musculoskeletal disorders such as the ones here. See Jandreau, 492 F.3d at 1377, n.4. Because disorders such as arthritis and bursitis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a right foot disorder, other than residuals of fractures to the 3rd and 4th toes of the right foot, is denied. Service connection for arthritis of the lumbar spine, hips, and knees, is denied. ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs