Citation Nr: 1340574 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-32 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for residuals of a right great toe injury. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to June 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT The Veteran's current right great toe disability did not have onset during active service, was not caused by active service, and arthritis of the right great toe did not manifest to a compensable degree within one year of active service. CONCLUSION OF LAW The criteria for service connection for residuals of a right great toe injury have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims 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). 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 that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must also 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). Proper notice from VA must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA received the Veteran's claim of entitlement to service connection for residuals of a right great toe injury in November 2009 and the RO subsequently provided all required notice to the Veteran in a letter sent to him in December 2009. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in obtaining the claimant's service treatment records (STRs) and other relevant records identified by the claimant, and providing an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's STRs and has associated these records with the claims file. Records of the Veteran's treatment at a VA medical center (VAMC) between January 1985 and August 2000 were also obtained and associated with the claims file upon notification by the Veteran, in December 2009, that a VAMC was the sole source of his care with regard to the claimed disability. These records appear complete. Also associated with the Veteran's file are records of his treatment at that VAMC from 2000 to 2013 and records VA received from the Social Security Administration (SSA) which pertain to the Veteran's March 2007 grant of disability benefits for discogenic and degenerative back disorders and malignant neoplasm of the pancreas. Coincident to VA's duty to assist the Veteran in substantiating his disability compensation claim, VA is required to provide an examination where an examination is necessary to decide the claim. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(i). In the present case, VA has not afforded the Veteran an examination or obtained an expert opinion with regard to his claim of entitlement to service connection for residuals of a right great toe injury, but as explained in the merits section of this decision, the preponderance of evidence is against a finding that the Veteran sustained an injury during service, a finding that is required in order to substantiate his claim. In determining whether the duty to assist requires that VA provide a medical examination or medical opinion, it must be considered whether the evidence of record: (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) establishes that an event, injury, or disease occurred in service, or establishes that certain diseases manifested during an applicable presumptive period; (3) indicates that the disability or symptoms may be associated with the claimant's active service or with another service-connected disability; and (4) contains sufficient competent medical evidence to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The second factor listed above is not present in the present case. The evidence does not establish an in-service injury or disease of his right great toe or that arthritis of his right great toe manifested within the applicable presumptive period. Thus, VA has no duty to provide an examination or obtain an opinion as to this issue. Additionally, upon the Veteran's request, VA scheduled a formal RO hearing in November 2011 to which the Veteran did not appear. In summary, the Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his 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). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim In December 2009, in a statement submitted by the Veteran and in a VAMC treatment report, the Veteran reported that he fractured his right great toe during basic training, the toe was set during service, the toe never healed properly, and the toe had to be reset at a VAMC in 1985. Reports of clinical evaluations conducted at a VAMC in 2009 and 2013 indicate that the Veteran was diagnosed with degenerative arthritis of the first metatarsal phalangeal joint, which is his current right great toe disability. The preponderance of evidence shows that it is less likely than not (less than 50 percent probability) that his current right great toe disability was caused by an injury during service, had onset during service, or that arthritis of the right great toe manifested within one year of separation from service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 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 . . . ." (Internal quotation marks omitted.) Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also 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). To the extent that the Veteran asserts that he injured his right great toe during service, the Board assigns little probative value to this statement, as it is inconsistent with the totality of the evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Madden v. Gober, 125 F.3d 1477, 1481 (1997). In a May 1980 report of medical history, which was documented contemporaneous with the Veteran's separation from active service, the Veteran endorsed that he did not have the following: foot trouble; broken bones; swollen or painful joints; arthritis, rheumatism, or bursitis; or bone, joint or other deformity. The Veteran also endorsed that he was in good health at that time and that he had not had any illness or injury other than those noted in the report. Additionally, a May 1980 report of medical examination documents that clinical evaluation of the Veteran's feet was normal at separation from service. Since his service, however, the Veteran has reported that he injured his great right toe during service-a report that is inconsistent with his report at separation from service and inconsistent with the STRs. As a result, the Veteran's statements as they pertain to the in-service occurrence of an injury to his right great toe are afforded less weight than the other relevant evidence of record. The Veteran's STRs do not document any reports of a right great toe fracture or any other injury to the Veteran's right foot. During service, the Veteran was treated for shoulder trauma, vomiting, and sinusitis, but there is no indication that the Veteran complained of any injury to his right great toe. There is no evidence other than the Veteran's statements to support the Veteran's contention that his right great toe was set during service. As previously stated, his May 1980 reports of medical history and medical examination indicate that he did not have any problems with his feet upon his separation from service. The STRs appear complete and if the Veteran suffered the toe injury during service and was treated for it, it is reasonable to expect that the STRs would include a report of such injury and treatment. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Lance, J., concurring). The STRs are therefore evidence against a finding of in service manifestation of a right great toe injury. There is no evidence in the STRs that indicates that the Veteran had a right great toe injury that was incurred or aggravated during service. With regard to his treatment following service, there is also no evidence other than the Veteran's statements to support the Veteran's contention that his right great toe was reset at a VAMC in 1985. Following service, the Veteran submitted multiple claims of entitlement to service connection for various other conditions, with requests dating back to 1989 and 2000 for conditions such as posttraumatic stress disorder, back problems, and hypertension. During his December 1988 through February 1989 treatment at a VAMC rehabilitation facility, the Veteran's mental and physical wellbeing was monitored regularly, but the associated clinical reports do not reference any complaints of injury or discomfort with regard to his right great toe. In fact, those reports indicate that the Veteran had no apparent physical problems and no physical complaints, only noting that the Veteran had a history of hypertension. The Veteran also complained only of depression, non-combat posttraumatic stress disorder, hypertension, and alcohol in two VA examinations that were conducted in April and May of 1989. There is no evidence in these records that demonstrates that the Veteran sustained a right great toe injury that was treated following his service. The number of clinical reports concerning conditions that are unrelated to his right great toe indicate that the Veteran was not opposed to seeking treatment and it is reasonable to find that he would have sought treatment for a right great toe condition had he sustained an in-service injury that continued to be a recurring problem. Notably, in 1989, the Veteran made visits to a VAMC podiatry clinic where he was treated for a painful corn on his right great toe, but not for any other injury or condition pertaining to his right great toe. It follows that if the Veteran had fractured that toe, such information would have been relayed to the evaluating clinician and a report of an injury to his right great toe would be included in his treatment records. Additionally, in inpatient and outpatient VAMC evaluations and evaluations conducted by a private medical facility in January 1989, February 1989, May 1989, April 1990, May 1990, September 1992, and August 2000 through November 2001, it is noted that his medical history also includes treatment and/or screening for back pain, leg pain, glaucoma, refraction, potential audiological deficiencies, and dermatological treatment. The Veteran was also treated three times for a sprained right ankle between December 1990 and April 1991, but the associated treatment notes only indicate that the Veteran complained of calf and shin pain. A March 2007 "health summary" and May 2007 "disability report" that were obtained from the SSA also note complaints and diagnoses of many conditions other than a right great toe injury, including lower back problems, degenerative disc disease, alcohol dependence, a herniated disc, hypertension, diabetes, seizures, depression, migraines, arthritis of the knees, and hepatitis. The evidence of record indicates that he did not seek treatment for a right great toe condition, other than a corn, until December 2009, after his November 2009 submission of a claim of entitlement to service connection for residuals of a right great toe injury. When he sought treatment in December 2009, he went to a VAMC and complained of pain and spasms in his right great toe, explaining that he stubbed that toe a few weeks prior to that visit and also that he broke that toe during service but it did not heal properly. The number of clinical notations pertaining to conditions that are unrelated to his right great toe indicate that if the Veteran had incurred an in-service right great toe injury that continued to cause him pain following his service, as he has alleged, the record would include evidence which supports this contention. Overall, the evidence indicates that the Veteran was not averse to seeking treatment for his ongoing conditions and it is reasonable to find that he would have sought treatment for a right great toe condition had he sustained an in-service injury that continued to be a recurring problem. The Board finds that while the Veteran's treatment records indicate that the Veteran has a current disability-degenerative arthritis of the first metatarsal phalangeal joint-the preponderance is against a finding that this current right great toe disability had onset during or was caused by his active service. The Board must, however, consider whether service connection for a right great toe condition is warranted on a presumptive basis. Service connection may be granted through the application of statutory presumptions for chronic conditions; the application of which satisfy the "in-service incurrence or aggravation" element that must be met before entitlement to service connection can be granted. See 38 C.F.R. § 3.303(b); see also 38 U.S.C.A. §§ 1101(3) (West 2002). A claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). Notably, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id.; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303(b). Notwithstanding the presumption that may be applied to a chronic disease shown in service, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C.A. §§ 1112(a)(1), 1137 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(3) (2013). For a chronic condition such as arthritis, a claimant may benefit from the presumption where the condition manifested to a degree of at least 10 percent within one year of separation from service, which may be shown by sufficient medical or lay evidence of the Veteran's symptomatology during that presumptive period. 38 C.F.R. §§ 3.307(a)-(b), 3.309(a) (2013). The Veteran's most recent VAMC treatment records indicate that he currently has degenerative arthritis of the first metatarsal phalangeal joint. As arthritis is a chronic condition that is listed in 38 C.F.R. § 3.309(a), the Board must consider whether the Veteran may benefit from the 38 C.F.R. § 3.303 and 3.307 presumptions of service connection. The Board finds that the evidence fails to demonstrate that arthritis was shown in service and also fails to demonstrate that the Veteran had arthritis that manifested to a degree of 10 percent or more within one year of his separation from active service. These presumptive provisions are therefore inapplicable to the present case. For the reasons explained above, the Board concludes that the Veteran has a current right great toe disability, but that the preponderance of evidence is against a finding that the Veteran's current disability had onset during service, was caused by any event, injury, or disease during active service, was shown during service, or manifested within one year of separation from active service. The preponderance of (CONTINUED ON NEXT PAGE) evidence is therefore against a finding of service connection for residuals of a right great toe injury, and the appeal must be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a right great toe injury is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs