Citation Nr: 1338084 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-33 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right ankle, foot, or toe disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1965 to July 1965 and in the United States Army from December 1977 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2011, the Board determined that the Veteran had submitted new and material evidence sufficient to reopen his previously denied claim of service connection for a right foot disorder. The Board then expanded that issue to include the Veteran's right ankle pathology and remanded the appeal for further evidentiary development. Now that the requested development is complete, the Board finds it necessary to further recharacterize the claim so as to highlight the fact that it encompasses symptoms specific to the Veteran's right toes. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (when determining the scope of an issue on appeal, the Board has an obligation to broadly construe the claimant's description of the claim, the symptoms he describes, and the information he provides in connection with that claim); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDING OF FACT The Veteran's current right ankle, foot, and toe disorders are not etiologically related to his active military service or to any disability incurred therein CONCLUSION OF LAW The criteria for service connection for a right ankle, foot, or toe disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset of this discussion, the Board notes that it has reviewed all the evidence in the paper and electronic claims file. This includes the written argument that the Veteran and his representative have presented in support of his service-connection claim, as well as his service and post-service treatment records. The Board has also reviewed the September 2011 VA examination report and October 2011 medical opinion, which have been elicited in support of that claim. Although the Board is obligated to provide adequate reasons and bases for its decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus on the evidence needed to substantiate the Veteran's service-connection claim and what the evidence in the claims file shows, or fails to show, with respect to that issue. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). I. Veterans Claims Assistance Act of 2000 (VCAA) Before proceeding to the merits of a perfected appeal, the Board must consider whether VA has met its duties to notify and assist the Veteran under the VCAA. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Hence, the Board will now address each of these statutory duties in the order set forth below. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claims at issue. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA 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. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In this case, VCAA notice was provided through a letter issued in February 2007, prior to the initial unfavorable adjudication. The February 2007 letter advised the Veteran of the specific evidence needed to substantiate his service-connection claim, as well as his responsibilities, and those of VA, for obtaining such evidence. That letter also described in detail how VA assigns a disability rating and an effective date following the grant of service connection. As such, that letter not only comported with the Pelegrini notice provisions but also satisfied the heightened VCAA requirements set forth in Dingess. Accordingly, the Board finds that VA has fully met its duty to notify the Veteran under 38 C.F.R. § 3.159(b). Duty to Assist The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c)(4). In this regard, the agency of original jurisdiction (AOJ) has obtained copies of his service treatment records (STRs) and pertinent VA medical records. The Veteran has neither alleged nor otherwise shown that any salient documentation remains outstanding in connection with his claim. In addition to records procurement, the AOJ has assisted the Veteran by affording him a September 2011 examination, which has yielded an October 2011 medical opinion responsive to his claim. While the Veteran and his representative have tacitly disagreed with the VA examiner's findings, neither party has alleged that such findings are inadequate to decide the appeal. Nor has the record otherwise suggested that to be the case. Accordingly, the Board finds that any additional VA examination would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken. See Sondel v. West, 13 Vet. App. 213 (1999). The Board's prior remand has been met with substantial compliance by the AOJ. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted, the AOJ has made reasonable efforts to obtain the Veteran's service and post-service treatment records, and has arranged for an examination that is adequate for rating purposes. Thereafter, the AOJ has readjudicated the appeal in an June 2012 Supplemental Statement of the Case (SSOC), which has expressly considered all evidence added to the claims file since the last adjudication. Accordingly, absent any showing to the contrary, the Board is satisfied that there has been substantial compliance with the terms of its latest remand, including its instruction to readjudicate the Veteran's claim in the June 2012 SSOC. See Stegall, 11 Vet. App. at 271. As a final matter regarding the duty to assist, the Board notes that, while the Veteran has not been afforded a hearing in connection with his claim, he has expressly waived his right to such a proceeding. See October 2007 VA Form 9 (disaffirming any intent for a Board hearing in support of Substantive Appeal). Significantly, there is no indication that the Veteran has otherwise been denied due process during the pendency of this appeal For the foregoing reasons, the Board finds the Veteran has had the opportunity to meaningfully participate in the adjudication of his claim for service connection for a right ankle, foot, or toe disorder. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Merits of Claim for Service Connection The Veteran contends that his right ankle, foot, and toe problems have persisted since his period of Army service and therefore warrant direct service connection. The Board has considered other theories of entitlement, but finds that the record does not support an award of presumptive or secondary service connection. But see Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised by the claimant or by the evidence of record as part of the non-adversarial adjudication process). To the contrary, the Veteran's right ankle, foot, and toe symptoms have not been shown to comport with a diagnosis of arthritis, or with any other chronic disease for which service connection may be rebuttably presumed under the provisions of 38 C.F.R. § 3.303(b), 38 C.F.R. § 3.307, and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in determining whether a chronic disease existed in service or an applicable presumptive period). Additionally, these symptoms have not been etiologically linked to his duodenal ulcer, the only disability for which VA benefits have been established. It follows that the Board need not further consider whether to grant service connection on secondary basis. 38 C.F.R. § 3.310. Having thus dispensed with the criteria governing presumptive and secondary entitlement, the Board will next address the criteria for awarding service connection on a direct basis. The Board will then explain why those requirements have not been fully met in this case. Establishing service connection on a direct basis requires evidence showing: (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. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, the Veteran's VA medical records and examination report collectively show that he has been diagnosed with right ankle sprain, metatarsalgia of the right foot, a right big toe callus, and mallet deformities of the right third and fourth toes. Such clinical evidence of current right ankle, foot, and toe diagnoses is sufficient to satisfy the threshold requirement for service connection under Hickson. The second element of Hickson has also been satisfied. Indeed, the Veteran's STRs reflect that, in January 1978, he was treated for a lower extremity muscle sprain warranting the prescription of an ankle brace. STRs dated the following month show that the Veteran sought additional treatment for right foot pain and tenderness sustained in a collision with a stroller. Conversely, his November 1979 Report of Medical Examination shows that clinical evaluation of the lower extremities and the feet were normal. Additionally, in a Report of Medical History completed by the Veteran at that time, he specifically denied ever having or having then "foot trouble." Nevertheless, the Board must still consider the other evidence presented, including the Veteran's own assertions of in-service injury, which he is competent to report. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge). Accordingly, the Board finds that the totality of the record is sufficient to establish that the Veteran injured his right lower extremity in service. His claim therefore turns on whether a direct nexus exists between such an in-service injury and one or more of his current right lower-extremity disabilities. To address this third and final Hickson element, the Veteran has undergone a September 2011 examination, which has yielded a medical opinion unfavorable to his service-connection claim. Specifically, the examining clinician has opined that the Veteran's right ankle sprain, right foot metatarsalgia, and related right lower extremity ailments are etiologically distinct from his in-service injuries and any other aspect of his military service. As a rationale for that opinion, the VA examiner has noted that the "injuries and foot problems identified during [the Veteran's] military service are not congruent with those identified on [the September 2011] examination." The VA examiner has further observed that the Veteran did not have any documented right ankle complaints or injuries during his military service and, thus, it is unlikely that his current right ankle sprain is related to any aspect of that service. The Board acknowledges that the above VA opinion does not address the January 1978 STR, which notes that the Veteran was fitted with an ankle brace. However, that in-service notation does not specify whether the lower-extremity muscle sprain that precipitated such treatment affected his right or left lower extremity. Nor does that notation indicate whether the Veteran actually injured his ankle in service, or whether the brace was merely prescribed to stabilize the surrounding joints. As such, the Board finds that notation, standing alone, does not wholly contradict the VA examiner's finding as to a lack of documented right ankle injuries in service. In any event, the Board observes that "[t]here is a presumption of regularity that public officers," including VA examiners, "perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'" See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). Moreover, "in the absence of clear evidence to the contrary," the Board and other VA adjudicators presume that public officers have "'properly discharged their official duties,'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). Therefore, absent any showing to the contrary, the Board presumes that the VA examiner has met his obligation to consider the pertinent contents of the claims file, which has been forwarded to him in its entirety. Moreover, the Board finds that, based on that VA clinician's evidentiary review and physical examination, his opinion regarding the etiology of the Veteran's right ankle, foot, and toe problems is both competent and credible and is therefore entitled to great probative weight. In this regard, the Board considers it significant that, in addition to the claims file review and physical examination, the VA opinion is supported by a rationale that accurately reflects the Veteran's pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion depends on whether the opining clinician is fully informed of the pertinent facts, i.e., history, of the case). As such, the Board is satisfied that the VA opinion describes the Veteran's right ankle, foot, and toe pathology in sufficient detail to allow for a fully informed evaluation of his claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding an examination report adequate where it describes the disability in sufficient detail to make a fully informed decision). Furthermore, there are no contradictory medical opinions of record. It follows that the Board has no basis to substitute its own independent judgment to reach a different conclusion regarding the etiology of any current right ankle, foot, or toe disorders. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board recognizes that the Veteran himself is of the opinion that his current right ankle, foot, and toe diagnoses had their onset in service. While a lay person, he is competent to opine on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Such questions, however, do not include the etiology of any current right lower extremity disorder, which requires medical expertise to resolve. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ('Although the Veteran is competent to testify to the pain he has experienced since his [active service], 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.'). Indeed, that is especially true where, as here, the Veteran has acknowledged a history of intercurrent injury. Specifically, he has told VA treating providers that he "fell at home around 1990" and thereby injured his right ankle. See August 2006 VA Physician Consult. The Board is mindful that the Veteran has since denied a history of post-service injury, specifically, during his September 2011 VA examination. Nevertheless, the Board finds that his earlier statement, which was uttered in the course of seeking clinical treatment, is more probative than his current countervailing complaints, which were rendered solely in the pursuit of VA benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that, "in the case of oral testimony,[the Board] may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness's testimony with other [evidence] submitted on behalf of the [claimant]"). Similarly, the Board assigns greater evidentiary weight to the Veteran's October 2006 statement to his VA treating clinicians, in which he estimated that his right ankle symptoms had arisen a decade after his Army service, than to his current assertions that such symptoms had their onset during that period of active service. Compare August 2006 Physician Consult with September 2011 VA Examination Report. Moreover, the Board finds that his current assertions of in-service nexus are further outweighed by the lack of any relevant treatment for several years after his Army discharge. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that, on the strength of the VA examiner's negative nexus opinion, and the lack of any similarly probative counterevidence, including the Veteran's own lay assertions, the totality of the record is insufficient to establish a direct link between his active service and any currently diagnosed right ankle, foot, or toe disorder. As such, the third and final Hickson element remains unmet and service connection is therefore not warranted in this case. In reaching this conclusion, the Board remains sympathetic to the Veteran and does in any way wish to diminish his honorable Navy and Army service. Nevertheless, the preponderance of the evidence weighs against his claim for service connection for a right ankle, foot, or toe disorder. Accordingly, while the Board has considered the benefit of the doubt doctrine, that rule is inapplicable and the Veteran's appeal must regrettably be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right ankle, foot, or toe disorder is denied. _____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs