Citation Nr: 1622636 Decision Date: 06/06/16 Archive Date: 06/21/16 DOCKET NO. 11-07 716 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from October 1981 until October 1985. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from December 2010 rating decision of the RO in Louisville, Kentucky. In November 2012, the Veteran presented testimony at a Board hearing chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2015). A transcript of the hearing is associated with the claims file. In a decision dated in April 2014, the Board denied this issue. The Veteran appealed that decision to the Veterans Court. In an Order dated in November 2014, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's April 2014 decision and remanded this issue back to the Board for development consistent with the Joint Motion. The Board again denied the issue in a January 2015 decision. The Veteran appealed that decision to the Veterans Court. In a memorandum decision dated in February 2016, the Veterans Court vacated the Board's January 2015 decision and remanded this issue back to the Board for additional development. FINDING OF FACT A bilateral foot disorder is related to service. CONCLUSION OF LAW A bilateral foot disorder was incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a bilateral foot disorder on the basis that it is related to service. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included among the enumerated chronic diseases. Arthritis is primarily rated on the basis of limitation of motion. Therefore, the rating provisions addressing limitation of motion of specific joints must be considered in determining whether arthritis is manifest to a degree of 10 percent or more. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). Service treatment records show that the Veteran was treated for a jammed left 2nd toe on August 29, 1983. The Veteran reported that the toe had been jammed against a cement block the previous day. There was slight ecchymosis noted with a hematoma at the 2nd metatarsal joint. Range of motion was restricted. There was tenderness on pressure in the entire region. X-rays revealed no significant abnormalities. The diagnosis was jamming trauma, 2nd toe, left foot. Aspirin was prescribed and the Veteran was limited to no running or jumping for 72 hours, during which time he was permitted to wear a soft shoe and to pursue physical training at his own pace. A December 25, 1984, record shows that the Veteran was treated for an inversion injury to the right ankle when he slipped on the mess hall steps earlier that evening. He complained of pain in the right ankle. There was minimal swelling, but point tenderness over the anterior ankle/talus was noted. The ankle was stable and neurovascularly intact. X-rays revealed evidence of an avulsion fracture of the right anterior talus, which was thought to represent an "old injury." The post-x-ray diagnosis on December 26, 1984, was a probable forefoot sprain. The injury was treated with a splint. On April 30, 1985, the Veteran was treated for a left foot injury incurred while playing basketball when someone stepped on his left foot as he was twisting around for a shot. The Veteran complained of pain along the arch and dorsum of the foot. There was swelling along the lateral left side of the foot and tenderness to palpation. There was pain along the inferior aspect of the medial malleolus ligaments. X-rays were negative for any fractures. The diagnosis was a contusion of the left foot with an ankle sprain. The Veteran was put on a limited duty profile from May 1985 until July 1985 as a result of this injury. He was issued a 3-point crutch to assist in walking. A separation examination is not of record, but a January 11, 1991, Army Reserve enlistment examination reveals normal clinical findings for the Veteran's feet and lower extremities. The examiner specifically noted in the margin, "feet no problems, normal." The Veteran reported a previous broken foot on his prescreening form, completed several days prior to the January 1991 examination; however, he did not report when this occurred. On a January 11, 1991, report of medical history, the Veteran denied any current or past foot trouble, bone, joint, or other deformity, arthritis, rheumatism, bursitis, or broken bones. He described his present health as "Excellent." Post service treatment records show that the Veteran did not report foot problems to any examiner until his September 2010 VA examination. X-rays at that time showed no old or acute fracture or dislocation of the feet or ankles. The examiner noted a spur seen on each calcaneus. Based on a review of the service treatment records and on a history elicited from the Veteran, the examiner opined that he could not determine the etiology of the Veteran's foot condition without resorting to mere speculation. He noted that, while the Veteran had foot injuries in service, the Veteran had no documentation of ongoing treatment other than wearing supportive shoes, and there was no (then) current foot condition other than complaints of pain. In an April 2012 VA examination, the examiner diagnosed a loose ossicle at the left talar head and degenerative or traumatic arthritis of the right foot. After reviewing the claims file and specifically addressing relevant service treatment and private medical records, the examiner opined that it was less likely than not that any foot condition was related to service. His rationale was as follows: After [injury to the right foot in service] there are no other complaints/findings/documentation regarding any problems with the R foot until 2011. In fact a 1991 enlistment exam (for Army Reserves) shows the patient denied any foot trouble. Therefore, there is at least a 20 year time period here where there are no complaints of a R foot condition. The patient could have injured his R foot at any point during this 20 years. Regarding the L foot the STRs showed in 1985 the patient sustained contusion of the L foot. The orthopedic notes indicate this condition seemingly resolved without any long term sequel as the patient was not seen on a long term basis about the contusion... In 2011 the patient notes he slipped on a wet floor in Jan. of that year. He was diagnosed with a R knee problem, but the patient could just as easily have injured his R or L foot then or at any other time in the 20 year time period noted above. MRI of the R foot does show degenerative changes and a spur associated with the talus. X-ray of the L foot at this time shows a loose ossicle at the talar head. But again these conditions could have occurred at any time after military service. See April 2012 VA Examination, p. 15. Private treatment records show that the Veteran was diagnosed with degenerative changes at the dorsal talonavicular joint with spur formation at the dorsal aspect of the talar head of the right foot in May 2011. No fracture was noted at the time. In a December 2012 private treatment record, Dr. J.P. diagnosed a large exostosis to the dorsal anterior talus consistent with an old fracture of the right foot, and arthritis of the right foot, possibly secondary to a previous fracture. After eliciting a history from the Veteran, the physician opined that the Veteran's current right foot disorder was "highly suspicious for being secondary to his maligned previous talar fracture." During the November 2012 Board hearing, the Veteran testified that he was diagnosed with arthritis or arthritic changes "in the eighties, nineties and 2000." The Veteran testified that he was seeing private physicians during this period for foot problems, "like the foot tightening up." He reported that a doctor told him that this was from an old injury. He testified that, after reviewing his x-rays, a doctor told him that his problems were from arthritis setting in, and he had an old injury in the foot. In the February 2016 single-judge decision, the Veterans Court found that the April 2012 opinion was inadequate in that it relied "primarily on the lack of treatment for a foot condition since service and apparently not considering his own lay statements regarding ongoing pain and treatment." The Board acknowledges that the Veteran is competent to relate his account of ongoing pain and treatment. However, the Veteran's account of ongoing pain and treatment was specifically found by the Board, in its January 2015 decision, to be not credible. The Board gave a detailed explanation for its credibility determination. The Veterans Court did not specifically discuss, or even acknowledge, the Board's credibility determination. The Board must therefore conclude that the Veterans Court found, without explicitly stating, that the Veteran's assertions are credible, and that the presence of ongoing pain and treatment of the feet, as described by the Veteran, is the law of the case. The Board is bound by the findings of the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Based on the law of the case, any etiology opinion which finds against the Veteran's assertions of ongoing symptomatology would be deemed inadequate. Therefore, the Board must conclude that there is no reasonable possibility that ordering further development to address the concerns of the Veterans Court would do anything more than waste limited VA resources. In sum, the evidence substantiates in-service injuries to both feet, substantiates current arthritis and bone spurs of the joints of the feet, and substantiates, by continuity of symptomatology, a nexus between the in-service injuries and the post-service diagnosis of arthritis. Accordingly, the Board concludes that service connection for a bilateral foot disorder is warranted. Duties to Notify and Assist As the Board is granting the claim, it is substantiated, and there are no further duties under the Veterans Claims Assistance Act of 2000 (VCAA). Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER Service connection for a bilateral foot disorder is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs