Citation Nr: 1512128 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 09-21 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for left foot pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in October 2007 by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2014 the Board remanded the Veteran's claim for service connection for left foot pes planus and for a skin disorder. In a January 2015 rating decision, the RO granted the Veteran's claim for service connection for a skin disorder; therefore, that issue is no longer in appellate status and not on appeal. With regard to the pes planus claim, the development orders by the Board were at the very least substantially complied with; and, as such, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's diagnosed left foot pes planus did not begin during active service and it is not shown to be otherwise etiologically related to military service. CONCLUSION OF LAW The criteria for service connection for a left foot disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided by letter in June 2007. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). Service treatment records and VA records have been obtained. The Board notes that the Veteran was afforded the opportunity to appear at a Board hearing and was scheduled for such, but cancelled his hearing. As such, his hearing request is considered to have been withdrawn. The Veteran was also provided with a VA examination in September 2013 (the report of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded his opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran, nor his representative, has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Merits In June 2007, the Veteran submitted a claim seeking service connection for bilateral pes planus. The Board denied the Veteran's right foot pes planus in July 2014 decision, noting that pes planus of the right foot was not shown on examination, and remanded entitlement to service connection for the left foot for a VA opinion. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. The Board notes that the Veteran has received a diagnosis of slight left foot pes planus at his September 2013 VA examination for his feet, although the examination report suggests that the deformity was only visible on radiographic imaging. Therefore, the Veteran has a current diagnosis and meets the first element of Shedden. Turning to crucial element two, in-service incurrence of an injury or disease, to the extent that the Veteran has generally, by virtue of filing a claim for service connection, contended that his left foot pes planus is related to his military service. However, for the reasons provided below, the Board finds that the competent and probative evidence of record outweighs these contentions. Having reviewed the evidence of record, the only evidence which suggests that the Veteran's left foot pes planus either began during or was otherwise caused by his military service is a statement provided by his wife in April 2009 in which she asserted that the Veteran's pes planus was caused by his years of wearing combat boots while walking in Vietnam. The Board observes that 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 (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran or a lay person can competently testify about symptoms the Veteran experienced in service or symptoms a lay person observed. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the statement by the Veteran's spouse is outweighed by the objective evidence of record. First, the Veteran's service treatment records (STRs) do not reflect any complaints of pes planus during service and there were no findings of pes planus or any abnormalities of the feet at the Veteran's July 1968 separation examination. Moreover, there is no record of any post service treatment or complaints of this disability until 2007, almost 40 years following the Veteran's discharge, and even as of 2013, the VA examiner had to use x-rays to determine that the Veteran even had pes planus in his left foot as the deformity was not visible to the naked eye. This last piece of evidence is particularly revealing to the Board in that if the Veteran's left foot pes planus is not currently visible, it is unclear how the spouse would have observed it. Accordingly, to the extent that the Veteran, and his wife, contend that his left foot pes planus manifested during service, this contention is at odds with the remainder of the record, which is devoid any indication that any injury or disease occurred during service. As such, the Veteran's and his wife's statements are lacking probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Element (2) of Shedden is therefore not met, and the Veteran's claim fails on this basis. The Board acknowledges the Veteran's wife's statement asserting a relationship between the Veteran's service and his pes planus. Unfortunately, as discussed above, her assertion does not serve as a competent nexus, since she would not. Nevertheless, given her assertions, VA obtained medical opinions to address the etiology of the Veteran's pes planus in September 2013 and October 2014. In September 2013, the VA examiner concluded that it was less likely than not the Veteran has a foot condition related to his military service, as there was nothing in service and only imaging evidence of very slight pes planus of the left foot currently. In October 2014 a VA examiner provided an opinion agreeing with the September 2013 examiner. The Board notes that as both examiners stated in their reports that they reviewed the Veteran's claims folder, it is inherently assumed that they reviewed the Veteran's wife's April 2009 lay statement. As described, there is no competent evidence of record that establishes a causal relationship between the Veteran's currently diagnosed left foot pes planus and his military service. In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence of a nexus between his left foot pes planus and his military service. The Board finds that neither the Veteran nor his wife as lay people are not competent to associate any of his claimed symptoms to his military service. That is, they are not competent to opine on matters such as the etiology of his current left foot pes planus, specifically because the Veteran's September 2013 X-ray report notes that the pes planus is very slight and only noticeable upon imaging. As such, the ability to render an opinion on such a condition requires specific medical training in the field of orthopedics and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training sufficient to render medical opinions, the Board must find that his wife's contention with regard to a nexus between the Veteran's pes planus and military service to be of limited probative value. See 38 C.F.R. § 3.159(a)(1). Accordingly, the lay statements offered by the Veteran in support of his own claims are not competent evidence of a nexus. Accordingly, element (3) is not met, and the Veteran's claim also fails on this basis. For the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left foot pes planus. The benefit sought on appeal is accordingly denied. ORDER Service connection for left foot pes planus is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs