Citation Nr: 1429331 Decision Date: 06/27/14 Archive Date: 07/03/14 DOCKET NO. 07-32 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from April 2001 to April 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his substantive appeal to the Board, the Veteran requested a hearing before a member of the Board. He was notified of his scheduled March 2011 hearing by letter in January 2011, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn. In July 2011, February 2013, May 2013, July 2013, and October 2013, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran does not have a right foot disability which is attributable to active service. CONCLUSION OF LAW The criteria for service connection for a right foot disability are not met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A May 2006 letter satisfied the duty to notify provisions. This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The claim was subsequently readjudicated, most recently in a May 2014 supplemental statement of the case. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. Multiple VA examinations have been conducted, and opinions provided, during the course of the appeal. Although some of the examination reports have deficiencies, each report has pertinent contributions to the broader question of whether the Veteran has a right foot disability that is related to his service. Taken as a whole, they establish the nature and etiology of the Veteran's foot disability, and are adequate evidence upon which to decide the claim. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disease first 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). Some chronic diseases, including arthritis, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among these chronic diseases. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Facts The Veteran asserts that he has a right foot disability which is related to his use of crutches during active service. In June 2003, while in active service, the Veteran reported right tibia pain for approximately 6 weeks while using crutches to treat a left ankle fracture. He indicated that most of his weight was on his right leg, which exacerbated the pain. Mild pitting edema of the right tibia was noted. A X-ray study showed a cortical defect of the mid-tibial shaft; however, a bone scan, conducted later in June 2003, showed "no abnormal tracer deposition noted associated with right tibia." In June 2004, the Veteran reported right tibia pain after running, and was diagnosed with possible tibial tendonitis. The Veteran's December 2005 separation examination is negative for reports of right foot pain or right foot abnormalities. However, on his report of medical history, the Veteran noted "foot and joint pains" since breaking his left ankle. Post-service medical evidence includes a December 2006 VA general medical examination. The Veteran reported to the examiner that he developed right foot pain after using crutches, and was diagnosed with a "possible stress fracture." After stopping the use of crutches, his pain reduced to a mild dull ache over the dorsum of the foot. He experienced this pain approximately once a month for about 6 hours. An X-ray study of the foot showed a bipartite sesamoid at the head of the first metatarsal. The foot was "otherwise essentially negative. No posttraumatic abnormalities in the foot are seen." A December 2006 VA neurological examination found no evidence of neurological abnormalities affecting the Veteran's right foot. In his July 2007 notice of disagreement, the Veteran stated that his pain was located primarily in his right tibia, not his right foot. The Veteran underwent another VA examination in August 2011. He reported that the pain was on the bottom of his foot, and that he had noticed it for approximately 1 year. He speculated that it had something to do with his right tibia tendonitis during service. An X-ray study found a bipartite medial sesamoid and degenerative changes in the first metatarsophalangeal (MTP) joint. The impression was that the examination was normal with the exception of "mild" age-related changes. On VA examination in April 2013, the Veteran indicated that his primary concern was numbness in his legs, and speculated that he had a stress fracture while walking on crutches. The examiner noted that there was no evidence of a stress fracture on a bone scan during service. A physical examination of the Veteran's right foot showed no limitation of motion or objective evidence of painful movement, although the Veteran indicated that he could not run for prolonged periods. "Minimal distal plantar fascia tenderness" was noted. A bone scan showed "chronic reactive change" in the area of the bipartite sesamoid bone, as well as inflamed soft tissues in the area of the "right greater left toes." An X-ray study showed a right bipartite sesamoid which was "almost certainly" congenital. It was not related to an in-service injury and was not productive of disability. Neurological testing showed no right foot abnormality. A June 2013 addendum opinion stated that bipartite sesamoid bones are usually incidental findings on X-ray studies and cause no pain. His minimal narrowing of the first MTP joint was not related to the bipartite sesamoid; additionally, the pain reported by the Veteran was not consistent with first MTP joint pain. The examiner concluded that the congenital bipartite sesamoid was not aggravated as a result of service. The symptoms reported by the Veteran were intermittent and episodic; thus, there was no evidence of a permanent aggravation as a result of service. An August 2013 VA examination found that the Veteran does not have pes planus, despite January 2012 and September 2012 VA clinical notes requesting that the Veteran be prescribed orthotics for pes planus. The examiner also found that the Veteran does not have plantar fasciitis. In February 2014, a VA medical opinion noted that the Veteran's bipartite sesamoid was less likely than not the result of a fracture. Symptoms of such a fracture were poorly localized pain around the first MTP joint; pain upon passive dorsiflexion of the first MTP joint; and pain upon direct palpation of the injured sesamoid. Radiographic studies were required to arrive at a diagnosis of fractured sesamoid. The examiner found that the findings of "chronic reactive change" in the area of the bipartite sesamoid bone in April 2013 were related to the diagnosis of bipartite sesamoid bone. A fracture would have shown a "much more intense uptake." The examiner went on to state that it was less likely than not that the bipartite sesamoid was directly caused by the Veteran's service. Although there were complaints about both ankles during service, there was no history of an injury to the area of the bipartite right sesamoid, no findings of pain or tenderness localized to that area, and the bipartite sesamoid was not diagnosed clinically, but rather was an incidental finding on X-ray studies post-service. The examiner concluded that "without documented history of problems in [the area of the sesamoid], we have nothing to suggest aggravation beyond the normal clinical progression of MTP arthritis that occurs with age and senescence." Analysis VA clinical notes show that the Veteran has been prescribed orthotics for what was termed "pes planus." Multiple VA examinations, however, have found that the Veteran's arches are normal, and that he does not have pes planus. The VA examinations have also concluded that the Veteran's symptoms are not consistent with plantar fasciitis. The only confirmed right foot diagnoses are mild degenerative changes in the first MTP joint and congenital bipartite sesamoid. The diagnosis of mild degenerative changes in the first MTP joint did not occur within the first post-service year. Thus, service connection for arthritis cannot be presumed. 38 C.F.R. § 3.307, 3.309. Service connection for arthritis can also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he had foot pain during service after using crutches. He is competent to report pain which is later attributed to arthritis. Layno v. Brown, 6 Vet. App. 465 (1994). However, his account of a continuity of foot pain since service is not credible. When he first filed his claim, the Veteran indicated that his foot pain was located on the dorsum of his foot, and that it was the same pain as he had experienced during service. He later stated to the August 2011 VA examiner that his pain was located on the sole of his foot, and had been present for only one year. In his notice of disagreement and in subsequent VA examinations, the Veteran stated that his primary concern was in his leg, not his foot; however, the foot pain that he describes is in the plantar aspect, or sole, of his foot. He has not mentioned pain on the dorsal aspect of his foot since he first filed his claim. In light of the Veteran's inconsistent reporting of his symptoms and the negative service treatment records, his account of a right foot injury during service and continuity of right foot symptoms since service is not credible. There is no objective medical evidence of right foot pain during service. According to the service treatment records and the VA examination reports, there were no symptoms documented during service which could be attributed to the development of arthritis in the first MTP joint. All of the VA examiners have attributed the Veteran's MTP joint arthritis to aging. The examiners are competent to render opinions in this matter, and their opinions are reasonably based on the evidence of record. They are of significant probative value. As to the bipartite sesamoid bone, the VA examiners who have addressed the question agree that the clinical presentation of the bipartite sesamoid bone indicates that it is congenital, and not the result of a fracture. Congenital or developmental defects are not normally considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, the April 2013 VA examiner found that the bipartite sesamoid bone is a "disease," in that it is capable of aggravation. As the Veteran's congenital bipartite sesamoid is considered a disease, not a defect, service connection may be warranted. A disease which is considered by medical authorities to be of familial or hereditary origin must, by its very nature, be found to have pre-existed a claimant's military service. VAOPGCPREC 82-90. Thus, there is clear and unmistakable evidence that the congenital bipartite sesamoid pre-existed service. 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(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The VA examiners who have addressed the question of aggravation agree that the Veteran's congenital right bipartite sesamoid was not aggravated during service. There were no complaints of pain in the area of the sesamoid. X-ray studies did not show any indication of a fractured sesamoid. The Veteran did not report foot pain at any point during service until his December 2005 separation examination, when he reported foot pain since fracturing his left ankle in 2003. Notably, the Veteran did not identify which foot was painful. Post-service treatment for the right foot disability has been intermittent and episodic at best. In December 2006, the Veteran reported that since service, he had had pain in the dorsum, or top, of his foot, which occurred approximately once a month for a few hours. Approximately 6 months later, in July 2007, he asserted that he did not have foot pain, and that his pain was localized to his right tibia. On VA examination in August 2011, and on every VA examination since then, the Veteran has reported pain on the sole of his foot. As the Veteran did not report pain in the area of the bipartite sesamoid during service or in the years immediately following his discharge, a permanent increase in severity of that congenital disorder during service is not shown. The preponderance of the evidence is against the claim for a right foot disability; there is no doubt to be resolved; and service connection for a right foot disability is not warranted. ORDER Service connection for a right foot disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs