Citation Nr: 1608264 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 08-29 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a foot disability, to include arthritis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran had a period of active duty for training (ACDUTRA) from January 1981 to June 1981. He also had a period of reserve service from June 1981 to June 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2011, the Board remanded the Veteran's current claim on appeal for further development as there was no competent opinion of record addressing whether the Veteran's condition was related to his period of ACDUTRA. The Board is satisfied that the directed development action has been performed, and is prepared to proceed with its de novo consideration of the issue on appeal. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. FINDING OF FACT The Veteran's foot disability, to include arthritis, is not etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a foot disability, to include arthritis, have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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, and 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 claims 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 (STRs), VA treatment records, and private treatment records have been obtained. The Veteran was also provided with a VA examination (the report of which has 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 contention, 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 the examination 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. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if the disability was manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) ("an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status"); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). That is to say, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez, 11 Vet. App. at 419. The Veteran contends that he has a bilateral foot disability, to include arthritis, that began during a period of ACDUTRA. Specifically, he alleges that the foot pain that he complained of on February 24, 1981, June 7, 1982, and June 8, 1982, marked the onset of current foot disability. A review of the STRs from the Veteran's period of ACDUTRA confirms that he was seen on one occasion (February 24, 1981) for complaints of right foot pain. The assessment was rule out tendonitis. However, the Veteran's STRs from his period of ACDUTRA are silent for any other complaints or diagnoses related to foot disabilities. No other foot complaints were recorded during the Veteran's period of ACDUTRA, and no complaints of left foot problems were recorded at any time during ACDUTRA. On the Veteran's May 1983 report of medical history, associated with a Tri-Annual Physical Examination Medical Report, a history of foot trouble was reported. Nevertheless, the Veteran was not found to have any diagnosed foot disability on examination. Post-service treatment records fail to show any treatment for foot-related issues for a number of years after service. It appears that the Veteran was initially diagnosed with bilateral foot arthritis in approximately 2005, more than two decades after his release from ACDUTRA. The Veteran was provided with a VA examination in April 2014 and after interview and physical examination, the examiner diagnosed the Veteran with metatarsalgia and noted the Veteran's self-reports of a 1981 diagnosis of degenerative joint disease (DJD) of the foot. Apart from the Veteran's lay statements of record, there is no medical record provided confirming the 1981 DJD diagnosis of the foot, and, as noted, arthritis of the feet was not diagnosed for several decades after the Veteran's ACDUTRA. The examiner opined that the Veteran's claimed foot condition was "less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The examiner's rationale was that the service records indicated treatment for right foot tendonitis, which was a self-limited pathology, and that there was no documentation about the left foot noted at the time of the examination. This opinion has not been questioned or undermined in any way by any other medical opinion of record. Upon review of the evidence, the Board finds no basis upon which to award service connection for the Veteran's claimed foot disability, to include arthritis. There is no competent evidence to suggest that the Veteran's foot disability is related to active service. No medical professional of record, either private or VA, has attributed the Veteran's current foot disability to his military service. The Veteran first developed the chronic condition decades after service. The first diagnosis of the bilateral feet arthritis was made in 2005, 24 years after separation from the Veteran's period of ACDUTRA. While this fact is not dispositive, it is a factor that weighs against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of feet-related disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While the Veteran might sincerely believe that his foot-related disability is related to active service, he lacks the medical expertise to provide such a link, and he has not cited to any medical evidence that would support such a link. In sum, while the Veteran has current diagnoses of foot disabilities, to include arthritis, there is no competent evidence, medical or otherwise, that establishes that any such foot disability began during active service or was otherwise caused by such service. Therefore, the criteria for service connection for a foot disability, to include arthritis, have not been met and the claim is denied. ORDER Service connection for a foot disability, to include arthritis, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs