Citation Nr: 1608298 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 09-47 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left foot disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active naval service from October 1982 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2012 and January 2014, the Board remanded the Veteran's claim for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDING OF FACT A left foot disability was not shown in service, foot arthritis was not diagnosed within a year of service discharge; and the weight of the evidence is against a finding that any current left foot disorder is related to service. CONCLUSION OF LAW The criteria for service connection for a left foot disorder have not been met. 38. U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 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 met, 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 the 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 (STRs), private treatment records, and VA treatment records have been obtained. Additionally, the Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided a VA examination with an addendum opinion (the reports 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 her opinions 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. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303. 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). Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If the disorder was not noted upon entry, the presumption of soundness may be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; VA Gen. Coun. Prec. 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). Such clear and unmistakable evidence includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. The Veteran filed his claim for service connection for a left foot disorder in April 2007, which was denied by an October 2007 rating decision. He asserted that his left foot condition was due to his active service. STRs show that at his enlistment examination in August 1981, he reported that he stepped on a sewing machine needed when he was five years old and had part of it removed, but he specifically denied having any foot trouble. In addition, he had a normal examination of his feet. In February 1986, he had a one centimeter left foot laceration, but he retained good range of motion. Furthermore, two months later in April 1986, he was cleared for SCUBA diving. At his separation examination in June 1991, he continued to deny having any foot trouble and he had another normal examination of his feet. After his separation from service, at VA examinations regarding other claims in December 1992 and May 1994, he did not report any left foot injuries, symptoms, or complaints. In addition, on examination he had no left foot findings or diagnosis. At a May 1996 VA examination, he reported having pain his neck and both shoulders due to an in-service injury, but yet again he did not report any foot injuries, symptoms, or complaints. Furthermore, his medical treatment records show no symptoms, complaints, treatment, or diagnosis for a left foot disorder until January 2007. In February 2007, he reported having pain for two months. In March 2007, he reported having left foot pain for "several" months. However, by 2007, the Veteran had not been in service for more than fifteen years. The Veteran was afforded a VA examination for his left foot in January 2013. The Veteran reported that his left foot pain began prior to his active service as he had a needle lodged in his foot. He also reported that he had some pain during his actives service, but it resolved. A left foot x-ray showed a needle overlying the calcaneus and a hallux valgus deformity. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner opined that the Veteran's left foot disorder was less likely than not due to or caused by his active service. The examiner noted that the Veteran reported he had no current foot pain. In August 2014, the January 2013 VA examiner submitted an addendum opinion. The examiner once more opined that the Veteran's current left foot disorder was less likely than not due to or caused by his actives service. The examiner noted that a history of a left foot foreign object was noted in his STRs. The examiner also noted that he was treated for a left foot laceration during active service; however, the examiner felt that it likely healed without residuals as the STRs contained no further mention of the wound and he was cleared for SCUBA diving two months afterwards, which implied he was physically fit to do so. The examiner further noted that at his separation examination, the Veteran denied foot trouble and had a normal examination of his foot. The examiner noted that the first evidence of left foot pain was in 2007 and the Veteran reported that he had foot pain for three months. The examiner concluded that based on the medical evidence of record, it did not appear that the Veteran had any active unresolved foot conditions during active service and that his foot complaints began approximately 15 years after his separation from service. The Veteran has not submitted any medical evidence supporting his contention that his left foot disorder is due to or the result of his service. VA obtained a medical opinion with an addendum opinion in an effort to support the Veteran in establishing his claim. The January 2013 VA examiner noted that the Veteran reported he had no left foot pain. In addition, the examiner opined that his left foot disorder was less likely than not incurred in or caused by the Veteran's active service. In August 2014, the examiner again opined that the Veteran's left foot was less likely than not due to or caused by the Veteran's active service based on the normal left foot findings during his active service and that the Veteran did not start reporting left foot complaints until approximately 15 years after his separation from service. The Board finds great probative value in the VA examiner's opinions. These negative opinions are 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, including the left foot foreign objected noted at his enlistment examination and his contentions that his left foot disorder was either due to or caused by his active service. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's allegation that his left foot disorder was due to his active service. He is clearly competent to report symptoms of left foot pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, while the Veteran may describe left foot pain, he lacks the medical training or qualification either to diagnose a left foot disability or to relate it to his active service. Id. The Board notes that no left foot problems were noted at either enlistment or at separation, and a chronic left foot disability was not diagnosed within one year of separation from service. As such, the Board finds that the evidence of record does not show continuous foot symptomatology since service. The record contains no evidence of treatment for a chronic left foot symptom in service, the medical evidence does not document any left foot treatment for the year following his separation from service, and as such, the Veteran is not entitled to presumptive service connection for a left foot disorder. The record does not show that the Veteran's left foot symptoms resulted in a diagnosis of arthritis within one year of separation from the service. Therefore, the presumption of service connection has not been triggered. Accordingly, the criteria for service connection have not been met for a left foot disorder. That is, the evidence does not show that a chronic left foot disorder was diagnosed in service or within a year of service and the weight of the evidence is against a finding that a left foot disorder has existed continuously since service. The medical opinions of record have also concluded that a current left foot disability neither began during nor was otherwise caused by the Veteran's military service Therefore, the claim is denied. ORDER Service connection for a left foot disorder is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs