Citation Nr: 1722158 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 12-33 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to May 1995 with additional service in the National Guard from November 1986 to September 1986 and from May 1995 to September 2004. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Fargo, North Dakota. In June 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In characterizing the issue on appeal, the Board has considered the claim as one premised on a diagnosis not considered in a prior decision and therefore the claim is treated as a new claim without the need for new and material evidence. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits). In this regard, the Board notes that the Veteran's application to reopen a claim for service connection for a bilateral foot disorder was last finally denied in an August 2007 rating decision. At the time of the prior denial, the Veteran had been diagnosed with bilateral pes cavus. Since the August 2007 denial, the Veteran has been diagnosed with various conditions of the feet in addition to pes cavus, including bilateral metatarsalgia, bilateral hammertoes, and hallux valgus of the right foot. As these diagnoses were not of record at the time of the previous final Board denial, the Board finds that the claim for service connection for a bilateral foot disability is a new claim, and must be considered without regard to whether new and material evidence has been received. FINDINGS OF FACT 1. Metatarsalgia, hammertoes, and hallux valgus did not manifest during service and are not attributable to service. 2. Bilateral pes cavus was noted on entry into service and did not increase in severity during service. CONCLUSIONS OF LAW 1. Metatarsalgia, hammertoes, and hallux valgus were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2016). 2. Pre-existing pes cavus was not aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Compliance with Prior Remand In January 2015, the Board remanded the claim and directed that a DD-214 Form be obtained for the period of service from February 1986 to September 1986, private treatment records be obtained from Dr. B. G. and VA treatment records from the Fargo VA medical center. The Board also directed that the Veteran be afforded an examination to address the nature and etiology of the Veteran's bilateral foot disorder, including whether the Veteran's pre-existing pes cavus increased in severity during service and whether the Veteran's metatarsalgia, hammertoes, and hallux valgus were as least as likely as not causally related to any incident in the Veteran's service and listed a number of documents for the examiner to address. A VA examination was undertaken in May 2015 and the examiner reviewed and addressed the listed documents and provided an opinion regarding etiology of the metatarsalgia, hammertoes, and hallux valgus. The AOJ obtained the requested medical records and DD-214, associated them with the file, and issued the Veteran an SSOC. The Board finds there was substantial compliance with the Board's remand directive. Duties to Notify and Assist VA has met all of the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). Duty to Notify VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must also notify the Veteran of the information regarding how an effective date and disability rating are determined. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify in this case was satisfied by a letter sent to the Veteran in October 2011. Duty to Assist VA also must make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claim being decided because his service treatment records, service personnel records, and lay statements have been obtained and appear to be complete. In addition, VA obtained relevant post-service VA and private treatment records. The Veteran has undergone VA examinations. The Veteran was previously provided a VA examination regarding his foot condition in November 2011 and May 2015. The Board remanded the claim for a new VA examination. The Board finds that the November 2011 and May 2015 VA examinations taken together in conjunction with other evidence are adequate because they involved a review of the Veteran's medical history (although the November 2011 examiner did not check any box regarding file review, her rationale showed familiarity with the Veteran's in-service and post-service medical history and records), consideration of the Veteran's lay statements, a thorough evaluation, and opinions that addressed the etiology of the claimed disorder(s) with rationale. For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2014). To establish a right to compensation, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); 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 or injury was incurred in-service. 38 C.F.R. § 3.303(d). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding 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(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002) (holding that "evidence of temporary flare-ups . . . alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened."); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in-service' unless the underlying condition, as contrasted to symptoms, is worsened."); see also 38 C.F.R. § 3.306(a). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran claimed that several injuries in-service caused his current foot issues. He claimed his left foot injury was caused by dropping a gun barrel on his foot. The Veteran also claimed his right foot injury was caused by jumping out of aircraft and injuries sustained in physical training in-service. See, e.g., VA Form 9. The Veteran has not contended, and the evidence of record does not support, that a foot injury occurred during any period of active duty for training or inactive duty for training. In his October 1987 service entrance examination, the Veteran had a pre-existing foot pes cavus noted, listed as moderate asymptomatic bilateral pes cavus. There were injuries to the feet noted in-service treatment records, namely items being dropped on the left foot in June 1989 and for the right foot in July 1990 and again for the right foot sometime in early 1994 and follow-up treatment for each of these injuries. In July 1990, the right foot injury was assessed as a contusion and an X-ray found no fracture or dislocation. A September 1990 service treatment record noted a provisional diagnosis of chronic tenosynovitis. In 1994, the Veteran was treated for right foot pain in January 1994 and mild right foot pain and foot strain of the dorsal and ventral distal metatarsals in June, July, and October 1994. The Veteran reinjured his right foot when stepping in a pothole during this same period in 1994. The Veteran's service treatment records also report he had a laceration on his left foot in March 1989 and a December 1994 report of left foot pain related to marching without adequate foot arch supports. In a report of medical history dated April 1995, the Veteran reported a history of foot trouble, namely that he dropped machine gun on his foot and had trouble with the arches in his foot. In an April 1995 separation medical examination, the examiner reported the feet were normal. The Veteran left service in May 1995. September 1995 and October 1995 treatment documents report the Veteran complained of dorsal foot and plantar pain when walking for the past year, worse when running. In August 1995, the Veteran had a VA examination of his feet. He reported injury to his left foot caused by dropping a machine gun barrel. The Veteran also reported wearing arch support for his high arches. An examination found a small bony planter calcaneal spur in the right foot, with no other abnormalities identified in either foot. The examiner stated the arches of each foot were maintained. The examiner opined that the pre-existing pes cavus did not increase in severity during service, based on discharge examination. There were no reports of hammertoes, gross callus, right or left foot tenderness, and no issues with standing on toes on both feet during the examination. In subsequent medical histories during the Veteran's National Guard service in April 2000 and October 2003, the Veteran denied a history of foot trouble. In medical examinations in April 2000 and October 2003, the examiners stated the Veteran's feet were "normal." In a November 2003 pre-deployment health assessment, the health provider did not note any orthopedic issues. A private treatment record from a podiatric doctor, Dr. B. G., from January 2011 reported the Veteran had pain and swelling in the right midfoot, related to movement. The Veteran stated the pain starting about 18 days prior with a gradual onset and worsening with time, as well right midfoot pain lasting for past 2 1/2 months with gradual improvement. In a January 2011 private treatment record, Dr. B. G. stated the Veteran expressed concern that he could have arthritis in his foot from an injury in-service in 1992. Dr. B. G. stated that the Veteran's injury "has not bothered him since it occurred." Dr. B. G. took X-rays and reported that there were no signs of arthritis. Dr. B. G. did find that the Veteran had pes cavus, hammertoes, hallux valgus, and severe cortical thickening. The right foot was negative for breaks in cortices, lytic lesions or erosions, periosteal reaction, fracture, dislocation, foreign body, or signs suggestive of osteomyelitis. The Veteran's right foot had calcaneal inclination angle increase, talar declination angle decrease, subtalar joint supination, bunion deformity, and posterior and calcaneal exostosis. The left foot was not examined. The Veteran had subsequent treatment in April, August, and September 2011 for left and right foot pain. An additional left foot injury causing pain in the foot arch was reported in private treatment documents, with a start date in August 2011. The Veteran underwent a VA examination in November 2011, which discussed the pes cavus. The examiner reported the Veteran related his foot pain to an injury in-service caused by dropping an object on his right foot and complaints of left foot pain in 1989. The Veteran also reported development of bunions over the years. The examiner noted hammer toes, hallux valgus, and metatarsalgia, and pes cavus on both feet. The Veteran reported use of an ankle brace. Diagnostic tests reported right foot calcaneal inclination angle increase, talar declination angle decrease, subtalar joint supination, bunion deformity, and posterior and calcaneal exostosis. Left foot calcaneal inclination angle increase, subtalar joint supination, bunion deformity, and posterior and inferior calcaneal exostosis, and rigid cavus foot structure. Diagnosis was bilateral pes cavus, bunion on right fourth hammertoes, and rigid cavus foot structure 4th hammertoe left foot. The examiner noted that the Veteran had treatment for a contusion, tenosynovitis, and pes cavus in-service as well as his injuries in-service caused by dropping items on his feet. The examiner stated "it would be reasonable to believe would have aggravated his condition particularly when he did not have orthotics until 1994." However, the examiner stated that the separation examination in 1995 had not noted treatment for foot problems. Additionally, the first record of foot problems occurred in 2011, after the Veteran worked for six years as a mail carrier for the postal service, which required a good deal of walking. As a result, the examiner stated the Veteran's pes cavus predated service and was not aggravated by service. There are two private opinions from Dr. B. G., dated May 2012 and October 2015. In a May 2012 private opinion, Dr. B. G. stated it was "more likely than not (50.1% or greater probability) that [the Veteran's] foot problems he has now are worse because of his military service." Dr. B. G. stated the Veteran's "foot deformity" was aggravated beyond the normal progression that may occur because of his military service based on "the number of miles and potential damage from overuse injury regarding his shoes and boots that were used while in the service." Dr. B. G. also stated "we have no way of knowing how many miles he put on his feet or how many minor injuries have occurred during his military service, however we do know that he probably put at least a few . . . years of wear and tear on his feet during this time." The October 2015 opinion is almost identical, except Dr. B. G. added that "parachute jumps" as well as marching may have caused "potential damage" to the feet and Dr. B. G. included a statement that he had reviewed the complete file. In an additional July 2013 private treatment document, Dr. B. G. again related the Veteran's unspecified "foot problems" to service. The rationale, to the extent one existed, was that the Veteran "has a history of previous ankle sprains and chronic foot problems medically related to being in-service several years ago. The [Veteran] was treated in the service with the insoles and continued to have problems after he was out of the service." In a July 2013 VA treatment record, a podiatrist attributed hammertoes, metatarsalgia, and hallux valgus, as well as pes cavus, to service and attributed premature development of hammertoes and bunion to service without providing any additional rationale. The Veteran had a second VA examination in May 2015. The Veteran told the examiner that he had dropped a gun barrel on his foot and that he pain off and on since and X-rays taken at the time did not show broken bones. He had worn insoles since that time. He related his right foot pain to jumping out of aircraft, physical training, and wearing improper shoes for his high arches. The examiner recorded that the Veteran had no significant foot problems to about 5 or 6 years before 2015 and that he worked as a mail carrier for the past 8 years and walked five or more miles a day. The Veteran had a ligament rupture during that time and the Veteran's foot pain occurs after the Veteran walks "4 1/2 to 5 hours," left foot worse than right. The examiner noted pes cavus of feet and hammer toes, hallux valgus, and metatarsalgia. The examiner reviewed the evidence of record, including X-rays dated March 2012, and summarized a number of events reported in-service. In the May 2015 VA medical opinion, the examiner stated the metatarsalgia, hammer toes, and hallux valgus were less likely than not caused by service, because Veteran's service records, April 1995 separation examination, and an August 1995 VA examination with accompanying x-ray made no mention of the conditions. The VA examiner also noted the Veteran was first diagnosed with these conditions in 2011 and 2013. The examiner also reported the Veteran's pre-existing pes cavus did not increase during service, based on the August 1995 VA examination, discharge examination, and X-rays. Instead, they were likely made worse by working for years at the Postal Service, where he walked numerous miles over many hours each day. Injuries of metatarsalgia, hammertoes, and hallux valgus The basic issues are whether there are residuals of the in-service injuries and whether the above pathologies are related to service. Here, there is no credible evidence that there are residuals of the in-service injuries. In addition, metatarsalgia, hammertoes, and hallux valgus were not manifest during service. Rather, other than the acute injuries and the pes cavus, the feet were normal, particularly at separation. His testimony that his hammertoes and hallux vagus during service is inconsistent with the far more reliable service records and is not credible. The most probative evidence establishes that the in-service injuries resolved. The metatarsalgia, hammertoes, and hallux valgus are unrelated to service, to include the use of his feet, marching, and jumps. The private opinions that appear to link the post-service pathology are remarkably unconvincing, lack believable reasoning, and are not credible. The May 2015 VA opinion is more probative. Specifically, the VA examiner reviewed the file, undertook an examination of the Veteran, addressed the Veteran's claim, and provided a conclusion based on supporting data. In contrast, the 2013 VA treatment record only provided a bare conclusion without any supporting data or rationale. Pes Cavus Pes cavus was identified at entrance. Therefore, the presumption of soundness as to pes cavus does not attach. Service connection may be granted, if pes cavus was aggravated during service. As to aggravation of pes cavus, it is argued that service connection is warranted because the Veteran's pes cavus foot condition was aggravated by service. See April 2013 Statement of Accredited Representative. The Veteran had a pre-existing foot pes cavus noted upon entry into service. See October 1987 entrance examination (listing moderate asymptomatic bilateral pes cavus). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). There are opinions, from a private doctor and from the VA, all medical professionals. Dr. B. G. is a specialist in the field of podiatry. The two VA examiners were a certified nurse practitioner and a certified physician's assistant. As to weight, Dr. B. G. and the May 2015 VA examiner both claimed to review the file and the November 2011 VA examiner at least had some familiarity with pertinent events in-service and post-service. Dr. B. G. opinion stated that service had worsened the Veteran's "foot problem." However, Dr. B. G.'s opinions are entitled to little probative value. Dr. B. G. claimed he reviewed the record and stated that the Veteran hurt his feet because of the "many miles he put on his feet" and "many minor injuries" that resulted in "several more years of wear and tear on the feet" and increased stress on the feet during service. However, the doctor's supporting rationale was only that "we have no way of knowing how many miles he put on his feet or how many minor injuries have occurred during his military service." In other words, Dr. B. G. gave an opinion based on rationale that is self-described as not supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). More importantly, the two private opinions by Dr. B. G. ignored the various medical documents of record. An adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). Dr. B. G.'s opinions regarding whether injuries or events in-service aggravated the Veteran's pes cavus are simply not factually accurate or supported by the pertinent medical records, namely the multiple National Guard examinations, the August 1995 VA examination, and the Veteran's self-reported medical histories, were the Veteran reported normal feet multiple years after service, as late as November 2003, and which the two VA most recent examinations considered in their detailed opinions. Additionally, Dr. B. G. ignored his own 2011treatment records, when the Veteran denied issues with his feet, including pain, since he left service until shortly. When the Veteran first sought treatment from Dr. B. G., he only associated his foot issues to possible arthritis caused by an injury in-service and not with any long-lasting pain. As a result, Dr. B. G.'s opinions are entitled to less probative weight when compared to the two VA examiners' opinions regarding the Veteran's pes cavus. In contrast, the two examiners either reviewed the file or, in the case of the November 2011 examination, had knowledge of the Veteran's medical history and record and discussed the pertinent facts, examined the Veteran, extensively reported the Veteran's medical history, and provided a conclusion in the medical opinion based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. The May 2015 VA examination in particular is entitled to great weight, as the examiner made clear that the file had been reviewed and listed a long list of service treatment documents regarding the Veteran's foot issues which the examiner considered. As such, while the Board has considered Dr. B. G.'s opinions, as they did not report the correct facts, they do not outweigh the more probative VA medical opinions. To the extent that there are opinions stating pes cavus was caused by service, such opinions are inconsistent with the facts and the entrance examination. The opinions have been considered, but rejected as based upon an incorrect factual basis. The Veteran himself has made statements to the effect that his current foot issues were either caused or aggravated by service. See, e.g., VA Form 9 (stating pes cavus aggravated by service); June 2013 Board hearing (stating his hammer toes and bunions developed in-service). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms, such as pain or abnormal bending of the feet or toes. Here, the Veteran's lay statements are contradicted by the record and by probative medical opinions and therefore they are not credible. The record does not document foot issues until years after service nor do the medical records document show aggravation of the pre-existing pes cavus. The Veteran's lay statements to the effect that the pain caused by his pes cavus had been aggravated by service are inconsistent with the record and, therefore, he is not a credible historian on this issue either. While he reported a history of foot issues at separation, including pain in his foot arches; complained of pain in his left foot related to not wearing adequate supports in new boots in December 1994; and reported a history of pain in his arches in the 1995 VA examination immediately after service, the Veteran proceeded to deny pain or issues with his feet for almost a decade and a half afterwards. In January 2011, when first seeking treatment from a podiatrist - when mentioning almost two decades of pain in his feet would be likely - the Veteran failed to mention pain in feet, only referencing an injury to his right foot in-service which the doctor reported "ha[d] not bothered him since it occurred." Even more informative, the Veteran did tell the private podiatrist about left foot pain, but only after several months of treatment and with a reported onset in August 2011. Rather, the Veteran made numerous statements in-service and years after service denying any foot issues, including in medical histories in April 1995, October 2000, and April 2003. The Veteran had three examinations of his feet at the same time as he provided these three medical histories and an additional VA examination in August 1995, which either listed the Veteran's feet as normal or did not mention any of these foot issues after examining the Veteran's feet. As such, while the Board has considered the Veteran's lay statements, as they lack credibility because they contradict the evidence of record and because the Veteran has been an inadequate historian of foot pain, they do not outweigh the VA opinions discussed above, which were based on the Veteran's medical records. In short, the credible and probative evidence establishes that the Veteran's bilateral foot disorder did not manifest during service nor was pes cavus aggravated during service. In light of the more probative VA opinions, the Board concludes that the preponderance of the evidence is against the claim for entitlement for service connection. The benefit-of-the-doubt doctrine is therefore not applicable. ORDER Service connection for a bilateral foot disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs