Citation Nr: 1338152 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 96-03 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The appellant served on active duty for training (ACDUTRA) from August 1974 to December 1974 and remained in the National Guard for in excess of seven years following his release from this period of training. These claims come before the Board of Veterans' Appeals (Board) on appeal of a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In January 2007, the Board denied these claims. The Veteran then appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court). In July 2008, based on a Joint Motion For Remand (joint motion), the Court issued an Order remanding these claims to the Board for compliance with the instructions in the joint motion. In June 2010, the Board in turn remanded these claims to the RO for additional development. Now the claim of entitlement to service connection for an acquired psychiatric disability requires further action. The Board therefore addresses this claim in the REMAND section of this decision, below, and REMANDS this claim to the RO. FINDING OF FACT The Veteran's military service, during which he wore ill-fitting boots and underwent two of four foot surgeries, hastened the formation of his callouses, resulting in weight-bearing scars and associated pain and increased callous formation in his feet. CONCLUSION OF LAW A bilateral foot disability manifested as scarring, pain and callouses was incurred during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Specifically, VA is to notify a claimant and his representative, if any, of the information and 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 his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). VA is also to assist this claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). With regard to the Veteran's bilateral foot claim, given the Board's favorable disposition, there is no need to discuss whether VA has complied with the duties the VCAA requires. Rather, any lack of compliance is non-prejudicial or harmless, not affecting the essential fairness of this adjudication. 38 C.F.R. § 20.1102; see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, but instead must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant bears the burden of proof of not only establishing this error, but also, above and beyond that, showing that it is unduly prejudicial or outcome determinative of his claim). II. Analysis The appellant seeks service connection for a bilateral foot disability on the basis that it developed during his time in the Army National Guard. He contends that, during his August 1974 to December 1974 period of ACDUTRA, his service issued him a pair of ill-fitting boots, which because they were too small caused him significant foot pain and calluses bilaterally. Allegedly, due to the boots and consequent foot symptoms, he underwent surgery during this period of ACDUTRA and additional surgery during the remainder of his time in the Army National Guard (through 1981), and continues to have foot problems presently. He asserts that his foot symptomatology manifested continuously since his August 1974 to December 1974 period of ACDUTRA. The Board acknowledges the appellant's written statements and considering them in conjunction with what is, in essence, an incomplete medical record, finds that the evidence supports a grant of service connection for a bilateral foot disability manifested as scarring, pain and callouses. Such disability is related in some way to the appellant's August 1974 to December 1974 period of ACDUTRA. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Active military, naval, or air service includes any period of active duty (AD), ACDUTRA, during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA), during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). It usually covers the 2 weeks of training a reservist does during each summer, whereas INACDUTRA generally is meant to encompass the one weekend of training the reservist does each month. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must show that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. §§ 3.6(a), (d). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). So in this case, because the appellant is alleging that his disability results from his time in the Army National Guard, he must show that such injury was incurred during his August 1974 to December 1974 period of ACDUTRA or a different period of INACDUTRA. To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); 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); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009) (in a cause of death claim, holding that it was error to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Certain diseases are considered chronic, per se, such as arthritis. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the 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 diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a chronic disease is at issue, such as arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). 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). Service connection may be presumed for chronic disease such as arthritis if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113; 38 C.F.R. §§ 3.307, 3.309(a). This particular presumption does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD, where the claimant is characterized as a veteran. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The appellant served on ACDUTRA from August 1974 to December 1974. His service treatment records confirm that he sought treatment for and underwent removals of bilateral calluses in September 1974, during such period. During follow-up visits in October 1974 and November 1974, he complained of ill-fitting boots. An examiner ordered the appellant a new pair. All records of the appellant's National Guard service after this period of ACDUTRA are not available. In the claims file, however, is a report of a periodic examination conducted in February 1979, during which the appellant reported that he had not had foot problems and an examiner noted that the appellant had normal feet. This history conflicts with medical records dated in 1980 and 1981, which confirm that the appellant indeed underwent additional foot surgery during the remainder of his service in the National Guard. More specifically, in September 1980, he sought treatment for painful feet and underwent a bilateral plantar hyperkeratosis excision and biopsy. In May 1981, the appellant again underwent a bilateral plantar hyperkeratosis excision after reporting seven years of pain on walking and spasms in the soles of his feet. The examiner noted that, despite the initial surgery, the calluses had returned, causing discomfort and spasms at night. Following his service in the National Guard, in August 1981, September 1981, October 1981, November 1981, December 1981 and January 1982, the appellant received extensive treatment, including another excision and biopsy of his plantar hyperkeratosis and an excisional biopsy of his plantar scar, for multiple bilateral foot complaints. X-rays of the feet taken in September 2000 revealed minimal inferior calcaneal spurring bilaterally, but no other abnormalities. X-rays of the feet taken in March 2006 revealed hammertoe deformities and small spurs. Two medical professionals have addressed the etiology of these disabilities. During a VA foot examination conducted in June 2006, an examiner diagnosed the appellant with bilateral feet corn (callosities) and congenital, bilateral hammer toe deformities. He ruled out a relationship between these foot conditions and the appellant's 1974 period of ACDUTRA on the basis that, after the appellant initially received treatment for foot complaints during this period, he did not seek further foot treatment for several years. The examiner thus concluded that the initial foot problems were acute and transitory. The examiner's unfavorable opinion is inadequate as it is based on the absence of certain medical records that are unavailable (the appellant's complete Army National Guard file) and does not contemplate the appellant's competent reports of continuing lay-observable foot symptomatology. Due to the inadequacy of the VA examiner's opinion, the Board referred the appellant's claim to a medical expert for a more comprehensive opinion pursuant to VHA Directive 1602-01 dated February 4, 2013. The Board instructed the expert to assume the competency of the appellant's reports of continuous foot symptoms since service prior to providing an opinion. In response, by written statement dated October 2013, a VA Chief of Podiatry initially found that the appellant's military service and ill-fitting boots could have hastened his callous formation and increased their severity, but that the record was too incomplete to determine this. He then found that the surgeries, one of which occurred during the 1974 period of ACDUTRA, clearly left the patient with weight-bearing scars, which predictably cause problems in the form of pain and increased callous formation. He based this opinion on the previously noted ACDUTRA history, clinical records in the claims file showing the progression of variously diagnosed foot abnormalities and on a finding that, for the purpose of the opinion, the appellant had a rearfoot varus foot type. The VA physician's opinion does not specifically indicate that the appellant's bilateral foot disability, however diagnosed, was at least as likely as not incurred in service, or that it was aggravated by in-service training during the 1974 period of ACDUTRA, but it makes clear that the disability and that period of ACDUTRA are related. Because the record is incomplete through no fault of the appellant, the Board finds such opinion sufficient to establish the necessary nexus in this case. It thus concludes that a bilateral foot disability manifested as scarring, pain and callouses was incurred in service. ORDER Service connection for a bilateral foot disability manifested as scarring, pain and callouses is granted. REMAND The Board sincerely regrets the delay that will result from remanding the remaining claim for service connection for an acquired psychiatric disability, but additional development is needed to decide this claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). During the course of this appeal, the RO assisted the appellant by affording him a VA psychiatric examination, but the report of this examination is inadequate to decide this claim. According to the parties' June 2008 joint motion, in ruling out a relationship between the appellant's psychiatric disability and service, the examiner who conducted the VA examination improperly relied, at least in part, on the absence of mental health symptoms shown during that service. Such reliance was improper because the examiner was not privy to the appellant's Army National Guard records and thus could not possibly know whether the appellant reported mental health symptoms during such service. As the records are still missing and it would be futile to again request them, an addendum medical opinion is needed, one that does not rely upon the absence of such records to support an unfavorable conclusion. Accordingly, this claim is REMANDED for the following additional action: 1. Afford the appellant another VA examination for the purpose of determining whether his psychiatric disability is related to, or initially manifested during, a period of active service. Ask the examiner to do the following: a. Record in detail the appellant's history of mental health complaints, including when his mental health symptoms initially manifested; b. Accept as credible any report of lay-observable mental health symptoms, including, for instance, sadness and anxiety; c. Offer an opinion as to whether the appellant's psychiatric disability is related to his August 1974 to December 1974 period of ACDUTRA, including any reported mental health symptoms; d. Provide detailed rationale, with specific references to the record, for each opinion expressed; e. Given that the appellant's National Guard records are missing, do not rely upon the absence of mental health complaints during the appellant's National Guard service as a basis for an unfavorable opinion; and f. If an opinion cannot be expressed without resorting to speculation, indicate this in writing in the report but, more importantly, discuss why a more definitive response is not possible. 2. Review this supplemental opinion to ensure it is responsive to the question of whether the appellant's psychiatric disability is related to, or initially manifested during, his 1974 period of ACDUTRA. If the report does not include a response to this question, take corrective action. 38 C.F.R. § 4.2. 3. Readjudicate this claim in light of all of the evidence of record. If the claim continues to be denied, send the appellant and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument concerning the claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs