Citation Nr: 1339615 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-31 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right foot disorder, to include equinovarus deformity and pes cavus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously before the Board in June 2011 at which time the issue on appeal was remanded for additional action; namely, to consider the newly raised issue of service connection for a right foot disorder on a secondary basis. The requested action was accomplished by way of an April 2012 supplemental statement of the case. This claim was again remanded in October 2012. The case was returned to the Board for appellate consideration. The Board found that additional development, including a VA examination, was necessary prior to adjudication. The requested VA examination was provided in June 2013 and an additional SSOC was issued in July 2013. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The case has been returned to the Board. The Virtual VA claims file has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Equinovalgus was noted at entry into service. 2. There was no superimposed disability of the Veteran's preexisting equinovalgus. 3. Right foot equinovalgus, equinovarus deformity, and pes cavus are congential defects. 4. Right foot equinovalgus, equinovarus deformity, and pes cavus, was not permanently worsened by service-connected residuals of a fracture of the right ankle medial malleolus. 5. Hallux valgus and hammertoes were not manifest during service and are not attributable to service. CONCLUSIONS OF LAW 1. Right foot equinovalgus was noted at entrance and the presumption of soundness at entrance is not applicable. 38 U.S.C.A. § 1111 (West 2002). 2. Right foot equinovalgus, equinovarus, and pes cavus are not diseases or injuries within the meaning of the law providing compensation benefits. 38 C.F.R. § 3.303 (2013). 3. Right foot equinovalgus, equinovarus, and pes cavus were not aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013). 4. Euinovalgus, equinovarus, and pes cavus, was not aggravated as the result of the Veteran's service-connected disease or injury. 38 C.F.R. § 3.310(b) (2013). 5. Right foot hallux valgus and hammertoes were not incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in September 2008 and October 2011, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. Although not all of the VA outpatient treatment records identified by the Veteran were obtained, adequate attempts have been made to obtain these records which have been deemed unavailable. See Memorandums of Unavailability of VA treatment records dated in January 2009 and July 2009. The Veteran was afforded VA examinations responsive to the claim for service connection of a right foot disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. Additionally, the Veteran has not alleged that any examination is inadequate to decide the claim being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease diagnosed after service 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 is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). However, VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b); see 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995)). 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. For a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As will be explained below, the Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claims for service connection. A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2013). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. §1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran's pre-induction examination report of February 1951 shows that he had equinovalgus, moderate. He was given a physical profile of L-3. In May 1951, while being treated for a fracture of the right medial malleolus, he was assessed as having talipes cavus, congenital, which was noted to have existed prior to service. In August 1951, he was put on a profile for deformity of both feet with excessively high arches. An October 1951 record notes that the Veteran had moderate pes cavus bilaterally for which he had a permanent L-3 profile. This record also shows that he was prescribed arch supports. His April 1953 separation examination report showed normal lower extremities. A November 1954 x-ray, associated with a VA examination report, indicates that the Veteran did not have any bone pathology of the feet. The VA examination report indicates that the Veteran did not have any complaints related to his feet. A July 1980 VA examination report indicates that the Veteran had mild pes cavus of the right foot with claw toes. VA treatment records have been associated with his claims file. March 2008 x-rays of the feet showed mild hallux valgus of the left and right great toes. There were no soft tissue abnormalities, or areas of bone erosion or destruction. In May 2008, he was treated for tenosynovitis of the right foot and ankle. An August 2009 VA examination report indicates that the Veteran's service treatment records showed bilateral pes cavus congenital foot deformities; the VA examiner also noted that the Veteran had a right foot equinovarus deformity. Following a physical examination, the diagnoses were congenital bilateral pes cavus deformities, acquired right equinovarus deformity, callosities at the head and base of the 5th metatarsal secondary to equinovarus deformity of the right foot, and avulsion fracture of the right medial malleolus. The VA examiner opined that the congenital bilateral pes cavus deformities are the same condition treated and diagnosed in service. The VA examiner also opined that the Veteran's right equinovarus deformity is not likely secondary to the right ankle disorder; according to the VA examiner, this deformity is secondary to the natural progression of the congenital pes cavus deformity. The VA examiner also opined that the Veteran's callosities are most likely sequellum of his foot deformity, due to the abnormal boney architecture and resulting abnormal weight bearing. The June 2013 VA examination report states that the Veteran's claims file was examined. The VA examiner noted that the Veteran had been diagnosed with bilateral pes cavus and right foot equinovarus, as well as hammertoes and hallux valgus. According to the VA examination report, the Veteran complained of right foot problems for several years, worsening in 2012; the Veteran reported that he was diagnosed with pes cavus and right equinovarus at that time. He also reported that he always had a history of high arches in both feet. Upon examination, the Veteran had hammer toes of the second, third, fourth, and little toes of each foot and asymptomatic hallux valgus. The Veteran also had bilateral pes cavus (acquired claw foot) of the hammertoes, number 2-4, with very painful callosities on the right and at the lateral left mid foot. The VA examiner noted that the Veteran's bilateral pes cavus was noted at induction and that he was shown as having "congenital talipes cavus" in service. The VA examiner noted that there was no evidence that the Veteran's pre-existing disorder was aggravated in service. The VA examiner opined that the Veteran's bilateral pes cavus was not due to or aggravated by the Veteran's military service; the VA examiner noted that the Veteran was given orthotics and a permanent profile upon entering service. The VA examiner also noted that the Veteran had a closed non-displaced medial malleolus fracture in 1951, treated with casting and without sequelae. The VA examiner opined that there was no evidence that the right ankle fracture caused or aggravated the pes cavus, and that the pes cavus is not secondary to the right ankle disorder. The VA examiner noted that the Veteran's bilateral pes cavus with forefoot varus, right greater than left, with calluses of the lateral feet, right greater than left, and that there is no credible medical, orthopedic literature that a right ankle fracture such as the Veteran's, which was well-healed in the remote past, would have caused or aggravated the Veteran's pre-existing foot in the distant future. The VA examiner provided definitions of equinovalgus (a foot deformity with high arch and valgus attitude); talipes cavus (similar foot deformity with high arch); pes cavus (high arch, also called talipes cavus), and equinovarus (foot deformity of high arch with varus attitude, commonly seen as club foot and also called talipes equinovarus). The VA examiner noted that these conditions are essentially synonymous. Likewise, the VA examiner noted that the Veteran's foot condition is considered a congenital deformity or defect of the feet, and is not associated with a superimposed disease or injury. The VA examiner concluded that it was his opinion that the Veteran's foot disorder was not directly related to the Veteran's military service or secondary to his service-connected right ankle fracture; the VA examiner stated that the Veteran's service-connected right ankle disorder did not aggravate the Veteran's right foot disorder. As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. The Board observes that congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. § 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. According to the VA General Counsel's opinion, however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Also, the presumption of soundness applies to congenital diseases, but not congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390 (2009). In this case, the Veteran was noted at entry to have equinovalgus, moderate. Thus, as this is a pre-existing condition, the Veteran is not entitled to the presumption of soundness with respect to this condition. The VA examiner explained that the Veteran's right foot disorder, however diagnosed (talipes cavus, equinovalgus, equinovarus, pes cavus) are essentially variations of the same disorder, and that the Veteran's equinovarus/pes cavus of the right foot is a congenital defect. Thus, the Veteran cannot be granted for service connection for aggravation of his right foot disorder absent a superimposed disability. Here, the absence of complaints or findings related to the Veteran's right foot after the new orthotics were issued in October 1951 and the normal physical evaluation at separation weigh against the Veteran's assertion that there was a superimposed disability. More significantly, the June 2013 VA examiner clearly opined that the Veteran's right foot disorder, including pes cavus and equinovarus, is a congenital defect, and is not associated with a superimposed disease or injury. Additionally, the Board concludes that the Veteran's preexisting right foot disorder was not aggravated, or not permanently worsened, by his service-connected residuals of a fracture of the right ankle medial malleolus. The June 2013 VA examination report provides sufficient probative evidence that the Veteran's congenital right foot disability, including equinovarus and pes cavus, was not aggravated by his service-connected residuals of a right ankle fracture. As noted above, the VA examiner explained that the Veteran's closed, non-displaced medial malleolus fracture of the right ankle was treated with casting and healed well, and that there is nothing in the record or the medical literature to suggest that such an injury, in the remote past, would aggravate a preexisting disorder decades later. Similarly, the absence of symptomatology in service reflects that there was no increase or worsening of the equinovarus and pes cavus during service; there is nothing to the contrary in the June 2013 VA examination report or any post-service treatment records. In this regard, the Board acknowledges that VA medical records from 1958 to 1960 were sought and found to be unavailable, but points out that the Veteran only reported a recent history of right foot complaints at the June 2013 VA examination. This undermines the Veteran's assertions that his service-connected right ankle disability caused a permanent worsening of his right foot. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The June 2013 VA examiner, in determining that the Veteran's right foot equinovarus and pes cavus was not aggravated by his service and/or service-connected right ankle disability, is entitled to greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); ("sometimes the layperson 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"). In this regard, it is important to note that there is simply no indication of any related problems during service. Rather, the separation examination was normal and the remote assertions of the Veteran are inconsistent with the clinical evidence of record, which demonstrates a remote post-service onset of right foot complaints, unrelated to his service-connected right ankle disability. The June 2013 VA examination report explained the reasons for the VA examiner's conclusions based on an accurate characterization of the evidence of record; thus, this opinion is highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). The evidence of record does establish that the appellant has hammer toes and hallux valgus. However, such pathology was not manifest during service, and has not been attrtibuted (causation or aggravation ) to service or a service connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a right foot disorder, to include equinovarus deformity and pes cavus, is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs