Citation Nr: 1438457 Decision Date: 08/28/14 Archive Date: 09/03/14 DOCKET NO. 08-33 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a right leg disability, claimed as due to left foot disability. 3. Entitlement to service connection for back disability (claimed as back pain), claimed as due to left foot disability. 4. Entitlement to service connection for neck disability (claimed as neck pain), claimed as due to a left foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from January 1983 to April 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a RO hearing in September 2008, and a Board hearing in August 2009; the transcripts are of record. In June 2010, the Board remanded the claims for additional development. In August 2012, the Veteran submitted additional evidence to the Board accompanied by a waiver of RO jurisdiction. FINDINGS OF FACT 1. The most probative evidence does not demonstrate that the Veteran's left foot disability, diagnosed as left foot bunionectomy, is related to an injury or disease or event in service, nor did arthritis manifest to a compensable degree within one year of service. 2. A right leg disability was not present in service or until many years thereafter, and there is no persuasive competent evidence that the Veteran's right leg disability is causally or etiologically related to, or aggravated by a service-connected disability. 3. A back disability was not present in service or until many years thereafter, and there is no persuasive competent evidence that the Veteran's back disability is causally or etiologically related to, or aggravated by a service-connected disability. 4. A neck disability was not present in service or until many years thereafter, and there is no persuasive competent evidence that the Veteran's neck disability is causally or etiologically related to, or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, diagnosed as left foot bunionectomy, are not met. 38 U.S.C.A. §§ 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection on a direct or secondary basis for a right leg disability are not met. 38 U.S.C.A. § 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection on a direct or secondary basis for a back disability are not met. 38 U.S.C.A. § 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 4. The criteria for service connection on a direct or secondary basis for a neck disability are not met. 38 U.S.C.A. § 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Here, prior to the initial rating decision in this matter, an October 2006 letter notified the Veteran of all five elements of a service connection claim, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claims. Therefore, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records (STRs) and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's STRs, VA medical records, and Social Security Administration (SSA) records are in the claims file. Private treatment records identified by him have also been associated with the file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination in November 2010 and an addendum opinion was proffered by another VA examiner in January 2012. The November 2010 VA examiner examined the Veteran, and reviewed the claims file and medical history, and provided explanations for the opinions stated which are consistent with the credible evidence of record and enables the Board to make an informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion"). Additionally, the Veteran was afforded the opportunity to give testimony before the undersigned in August 2009. At the hearing, the undersigned identified the issues on appeal and discussed the Veteran's service history and his current complaints. The undersigned sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the claims based on the current record. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claims. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a), 1133; 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). 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. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background Service treatment records show that, on October 1982 enlistment examination, no swollen or painful joints or foot trouble was noted. In March 1983, the Veteran was seen in podiatry with complaints of bilateral foot pain. X-rays were normal. The Veteran was given a Kenalog injection. There is no separation examination of record. The Veteran separated from service in April 1984, and filed his original claim for service connection for bone separation of the left foot in September 1984. The Veteran was afforded a VA examination of his left foot in connection with his claim in November 1984. X-rays revealed no distinct osseous articular soft tissue abnormality. No swelling was noted. There was tenderness in the web space between the big toe and second toe. There was a callus in the same area. He could wiggle his toes well and movements of the ankle were within normal limits. In September 2006, the Veteran asserted "separation of bone in left foot causing constant instability in movement and control of left foot, resulting in broken leg, constant and severe back pain, neck pain, foot pain, [and] inability to stand or sit for longer than 30 minutes without extreme discomfort or pain." An August 2007 private treatment record indicates that the Veteran complained of aching, stabbing pain in his left great toe joint. He related that the pain had been there for years, although it was getting progressively worse, especially when ambulating. He relates a history of separating bones between his 1st and 2nd toe when he stepped on a rock in the military approximately 30 years prior. He stated that at that time they gave him a shot, he is not sure what it was, and he had not really had any significant problems since. The examiner assessed hallux limitus, left foot. In September 2007, the Veteran underwent a bunionectomy of the left foot. A March 2008 private treatment record notes the Veteran complained of continuous pain in the left ankle and foot. He was seeking regular podiatry treatment. On physical examination, range of motion of the left foot, ankle and toes were limited to 30 degrees. The Veteran reported that his foot problem was due to his service in Kentucky. The examiner diagnosed left foot, left toe pain from trauma and osteoarthritis. In February 2009, the Veteran was seen with complaints of possible fibular sesamoiditis versus stress fracture left foot. An x-ray showed no definitive signs of a fibular sesamoid fracture. At the Veteran's August 2009 Board hearing, the Veteran asserted that his physician has told him that his foot injury in service could have been a stress fracture, which would not have shown up on x-ray. The Veteran also stated that he started seeking treatment for foot problems in 1989. An August 2009 letter from the Veteran's treating physician, Dr. S.P., states that he had been treating the Veteran since June 2007. After a visit or two the Veteran was referred to a podiatrist for his left foot pain and problems. In September 2007, the Veteran underwent a bunionectomy on his left foot. The Veteran's service records were reviewed and revealed that in October 1982 when he entered into the service he had no problems with his left foot. In March 1983 he complained of left foot pain and was told that his bones were separated. In November 1984 he stepped on a rock in service and since then he has been having left foot problems. The physician opined that the Veteran had left foot problems possibly related to his injury during his service. A July 2010 statement from Dr. S.P. reflects that the Veteran had been a patient since May 2010. The Veteran reported chronic left foot pain since March 1983. Dr. S.P. noted review of his office records. In March 1983 when he was in basic training he had complained of foot pain and was told that he had "separation of bones." In November 1984 he stepped on a sharp rock during service and reported increased foot pain since then. The Veteran had a bunionectomy of the left foot in September 2007. He also has arthritis in the left ankle. Dr. S.P. opined that the Veteran's left foot problems are likely related to the injuries he had during service. On November 2010 VA examination, the Veteran reported that, while performing increased rucking in 1983 in service, he landed on a jagged rock and had increasing pain. He was possibly diagnosed with a stress fracture or was told that he separated one of the bones of his foot. He was not casted and denied any specific treatment. He reported he was seen intermittently thereafter for the left foot. After service, he had been sporadically followed by Podiatry. He reported that possibly a steroid injection was administered to the foot. Upon physical examination and review of the claims file, the examiner opined that the Veteran's left foot condition is not caused by or a result of his military service. The examiner reasoned that the Veteran had one evaluation of his left foot during active duty, and no specific diagnosis was given at that time. The bunionectomy was performed 25 years after his discharge. Finally, the 1984 VA examination noted no impairment to the left foot. In a January 2012 VA addendum opinion, another examiner opined that it is less likely as not that the Veteran's left foot condition is related to his active duty. The examiner also opined that it is less likely as not that the Veteran's claimed right leg, neck, and back disabilities were incurred in service, caused by, or underwent a permanent increase in severity due to the Veteran's left foot condition. The examiner reasoned that the Veteran had a bunionectomy more than 25 years after service, and there is no evidence of a bunion condition while on active duty. Regarding the right leg, there is no medical literature that supports that a left foot condition (i.e. bunion) necessitates a hip replacement. There is no evidence that the Veteran suffered a right hip condition while on active duty. Regarding the neck and back disabilities, the Veteran reported that he sustained an injury on his job and as a result injured his cervical and his lumbar spine. Additionally, according to medical literature, cervical spondylosis is mainly caused by "wear and tear." There is no associated medical condition regarding the lumbar spine. In March 2012, a private x-ray revealed no fracture, and possible surgical changes at the distal end of the 1st metatarsal. A June 2012 private opinion from the Veteran's podiatrist, Dr. B.K. states that "there is a possibility that while the Veteran was in service that it may have caused arthritis in his feet." IV. Analysis The evidence of record shows that a left foot disability has been diagnosed. However, even conceding that the Veteran injured his left foot in service, the evidence does not show any chronic disabilities diagnosed during that time. The absence of a diagnosis within one year of service essentially bars the grant of service connection on a presumptive basis. 38 C.F.R. §§ 3.307 and 3.309. Further, in light of the lack of documented complaints between 1986 and 2006, continuity of symptomatology is not established. As for there being a medical nexus between the Veteran's service and his current left foot disability, multiple medical opinions have been considered and weighed. After a review of the opinions in this case, the Board finds that the November 2010 VA opinion is the most probative and persuasive medical evidence in this case, as it is based upon a complete review of the Veteran's entire claims file and examination of the Veteran and supports its conclusions with detailed rationale. The VA examiner considered the Veteran's stated contentions, as well as the lay statements in support of the claim. After considering evidence of record, the VA examiner opined that the Veteran's left foot disability is not related to service. Thus, while it is clear that the Veteran experienced foot symptomatology during service, the VA examiner had the opportunity to review the entirety of the medical and lay evidence of record and provided a clear rationale in support of the conclusion, and thus this opinion is entitled to more probative weight than the opinions of the other examiners. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's direct service connection claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Careful consideration has also been given to the opinions of the private medical providers. Regarding the August 2009 opinion from the Veteran's treating physician and the June 2012 opinion from the Veteran's podiatrist (which state that the Veteran's left foot disability is "possibly" related to service), medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993).) Regarding the July 2010 opinion from the Veteran's treating physician, the physician cited two injuries in service, one in November 1984, which was several months after the Veteran's separation from active duty. Further, no private opinion noted or commented on the negative evidence, namely, the normal x-ray findings in March 1983 and October 1984. This suggests the opinions are based on an inaccurate factual predicate and are of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, after weighing all the evidence, the Board finds greatest probative value in the VA opinion, and, in light of the other evidence of record, this negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The Board has not overlooked the Veteran's contentions or the other lay statements provided in support of his claim. However, while lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the claimed disabilities fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1372. That is, although the Board readily acknowledges that Veteran is competent to report left foot pain, there is no indication that the Veteran is competent to etiologically link any reported in-service symptoms to disabilities diagnosed many years after his discharge. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In arriving at the decision to deny the service connection claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. As the Board denied service connection for a left foot disability, there remains no further basis for consideration of the Veteran's claims of secondary service connection for right leg (specifically the hip), back, and neck disabilities under 38 C.F.R. § 3.310, as secondary to a left foot disability. Nevertheless, the Board notes that the service treatment records do not show that the Veteran had complaints or findings referable to a right leg, back, or neck disability during his service or for many years thereafter. In this regard, it is important to note that there is simply no indication of any related problems during service. As service connection has been denied for a left foot disability, the assertion of a secondary relationship to a right leg, back, or neck disability fails. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (in "order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'"). Therefore, service connection for the claimed right leg, back, and neck disabilities must be denied; the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for back disability is denied. Entitlement to service connection for neck disability is denied. ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs