Citation Nr: 1338065 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-36 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left foot disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from April 28, 1966 to May 17, 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, the Board remanded the case for the development of additional evidence. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. A left foot disability was noted at the time of the Veteran's enlistment into active duty. 2. The Veteran's pre-existing left foot disability was not aggravated beyond natural progression as a result of military service. CONCLUSION OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). In this case, compliant VCAA notice was provided in a July 2006 letter. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, post service treatment records, and a VA examination report. This case was remanded by the Board in August 2011 for additional development, to include providing a VA examination. The directives were completed as directed. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). If a pre-existing disorder is "noted" on entering service, in accordance with 38 U.S.C.A. § 1153 the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that due to basic training and rigorous physical conditions experienced while in service, his pre-existing left foot disorder was aggravated by his military service. On his service induction report of medical history in March 1966, Veteran reported that he had a foot operation when he was 15 years old. The examiner noted an operation for club foot with no current complaints of painful feet. The service induction examination in March 1966 noted that the Veteran had pes cavus and numerous small scars of the left foot. "Atrophy of the lower left extremity" was noted, but then crossed out. On May 3, 1966, five days after induction, the Veteran was hospitalized for "administrative processing only." It was noted that the Veteran reported having limitation of motion of the left ankle and foot, pain on long standing or walking, and instability of his left foot since his surgery for correction of his club foot. Upon physical examination, the Veteran was found to have a "somewhat modified club foot deformity." The examiner noted that the left foot was shortened and there was a cavus deformity with mild metatarsus varus. The Veteran's range of motion revealed no dorsiflexion of the left ankle and foot and only 10 degrees of plantar flexion. There was no inversion or eversion of the foot. The examiner determined that the Veteran was medically unfit for retention in the military service and recommended a medical board. Medical Board proceedings took place on May 12, 1966 and it was determined that the Veteran was not fit for service due stiffness of left ankle with complete loss of dorsiflexion, inversion and eversion, and only 10 degrees of plantar flexion, secondary to old clubfoot deformity partially corrected prior to service. The condition was listed as not in the line of duty, existing prior to service, and not aggravated by activity duty. Following his 14 day administrative hospitalization, he was discharged from service on May 17, 1966 due to medical unfitness. The Veteran submitted medical records which included an operative note from the Baptist Hospital dated in June 1957 which described the Veteran's surgical procedure for his cavovarus deformity of the left foot. A post-service private treatment record dated in November 2006 reflects complaints of a painful keratotic lesion on the plantar aspect of the left foot. The private doctor found that the Veteran had a varus foot deformity with significant hammer digit deformities of the four lesser toes of the left foot. The Veteran's foot was found to be in a plantar flexor position, rather than in a neutral position. A private treatment record dated in November 2007 noted that the pain felt in the Veteran's left foot interfered with his activities. It was noted that the Veteran had also developed a painful callus underneath his fifth toe. The private doctor found a hyperkeratotic lesion to the plantar aspect of the left fifth metatarsal phalangeal (MP) joint. There was no pain on palpation. The Veteran was provided temporary inserts for his shoes. A private treatment record dated in December 2007 noted a varus position of the left forefoot, pain on palpation at the base of the left fifth metatarsal and varus motion about the fifth ray. The Veteran was afforded a VA foot examination in August 2011. The examiner noted the Veteran's medical history and in-service examinations. It was noted that the Veteran wore corrective shoes and orthotic inserts. Upon examination, the examiner noted tenderness in the left foot, reflected tender calluses under the MP joint of the 4th and 5th toe. There was also objective evidence of weakness found with little motion of the joint. The examiner also noted a fused hind foot with little motion and callosities. The examiner reported that the Veteran had pes cavus and muscle atrophy and noted that the left foot was 7cm shorter than the right foot. The examiner reviewed x-rays taken in January 2005 and diagnosed the Veteran with congenital left club foot with severe atrophy and postoperative triple arthrodesis. The examiner opined that the Veteran's postoperative club foot with severe atrophy was not caused by or a result of the Veteran's brief training in service. The examiner stated that the x-ray results included in the report did not show any old traumatic changes to the bone that would be present if the Veteran had injured his foot in the several days of training in boot camp. The examiner noted the Veteran's contention that his military service aggravated his already severe condition beyond its natural progression. The examiner, however, stated that there was no evidence of aggravation or injury to the foot and concluded that the Veteran's military training did not alter the condition of his left foot. Based on a review of the entire record, the Board finds that the preponderance of the evidence is against the claim for service connection for a left foot disorder. The evidence of record reflects that the Veteran suffered from a pre-existing left foot disability, having undergone surgery for club foot prior to service. Regarding the question of aggravation, the Board finds that there is no medical evidence that the pre-existing left foot was permanently aggravated beyond its natural progression by the Veteran's military service. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The service Medical Board found the condition was not aggravated by service. Moreover, the August 2011 VA examiner reported that there was no evidence of aggravation or injury to Veteran's foot while in service, and stated that service did not alter the Veteran's condition. Given this probative medical opinion, the Board finds that there was no in-service aggravation of the Veteran's pre-existing left club foot deformity. While the Veteran has alleged that his left foot disorder was aggravated by his military service, there is no indication that he has specialized training in diagnosing such a disability or determining its etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the question of whether the Veteran's pre-existing left foot disability was aggravated by his 20 days of military service, 14 of which were spent in administrative hospitalization, requires medical expertise to determine. Moreover, whether his current foot disability is related to service also requires medical expertise to determine. As such, the Veteran's own opinions regarding the relationship between his pre-existing foot condition, his service, and the current disability are not competent medical opinions. The Board accords significantly greater weight to the opinion of the VA examiner and the service department than to the Veteran's lay assertions. In summary, a left foot disorder was noted upon entrance into military service. The most probative evidence of record indicates that the pre-existing disorder was not aggravated beyond natural progression during the Veteran's service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a left foot disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs