Citation Nr: 1745167 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 09-20 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right foot disability, to include bunions. 2. Entitlement to service connection for a left foot disability, to include bunions. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from June 2001 to June 2006, including service in Iraq. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for a right foot disability, to include bunions (listed as bunions of the right foot); a left foot disability, to include bunions (listed as bunions of the left foot); a left hip disability (listed as a left hip condition); a right knee disability (listed as a right knee condition); a left knee disability (listed as a left knee condition); a right shin disability (listed as a right shin condition); and for a left shin disability (listed as a left shin condition). The case was later transferred to the Detroit, Michigan Regional Office (RO). A July 2012 RO decision granted service connection and a 10 percent rating for bursitis of the left hip, effective June 16, 2006; granted service connection and a 10 percent rating for patellofemoral syndrome of the right knee, effective June 16, 2006; granted service connection and a 10 percent rating for patellofemoral syndrome of the left knee, effective June 16, 2006; granted service connection and a noncompensable rating for a right shin condition, residuals of stress fractures, effective June 16, 2006; and granted service connection and a noncompensable rating for a left shin condition, residuals of stress fractures, effective June 16, 2006. Therefore, the issues of entitlement to service connection for a left hip disability; a right knee disability; a left knee disability; a right shin disability; and a left shin disability, are all no longer on appeal. In April 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. The issues have been recharacterized to comport with the evidence of record. FINDINGS OF FACT 1. A right foot disability, diagnosed as bunions and residuals of a stress fracture, had its onset in service. 2. A left foot disability, diagnosed as bunions and residuals of a stress fracture, had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability, diagnosed as bunions and residuals of a stress fracture, have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for a left foot disability, diagnosed as bunions and residuals of a stress fracture, have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that she has a right foot disability, to include bunions, and a left foot disability, to include bunions, that had their onset during service. She specifically maintains that she was treated for bilateral foot problems, including bunions, during her period of service. The Veteran indicates that she developed bunions during service due to the boots that she wore while serving in Iraq. She also reports that she never had any right or left foot problems prior to service. The Veteran essentially asserts that she was treated for bilateral foot problems, including bunions, during service and that she continues to have residuals of those conditions. The Veteran served on active duty in the Army from June 2001 to June 2006, including service in Iraq. The Veteran's service treatment records indicate that she was treated for right foot and left foot problems on multiple occasions. On a medical history form at the time of a June 2000 enlistment examination, the Veteran checked that she did not have foot trouble. The reviewing examiner did not refer to any right foot and left foot problems. The objective June 2000 enlistment examination report includes a notation that the Veteran had slight hallux valgus, asymptomatic. The examiner also reported that the Veteran had normal arches in both feet. A May 2003 treatment entry notes that the Veteran complained of throbbing pain in the shins and heels. The examiner reported that that a bone scan reveals moderate stress changes of the feet. The assessment included bilateral stress fractures of the calcaneus per a bone scan. A May 2003 radiological examination report, at that time, relates an impression that included moderate stress changes of the feet. A June 2003 treatment entry indicates that the Veteran complained of a swollen right foot for two days. She reported that she had constant pain which she described as a ten out of ten in severity. Another June 2003 treatment entry, on that same day, notes that the Veteran had a known stress fracture of the medial malleolus and of the carpal. The Veteran reported that she had not been running, jumping, or jogging for two weeks, but that she was still noticing increased pain in the medial aspect of her right foot. The assessment was foot pain. A June 2003 radiological examination report, as to the Veteran's right foot, relates an impression of a suggestion of some soft tissue swelling in the medial aspect of the proximal foot overlying an accessory ossicle at the proximal aspect of the navicular. The impression also included a hallux valgus metatarsus varus deformity. The examiner indicated that although a definite bony injury or enthesophyte was not identified, further evaluation with a magnetic resonance imaging (MRI) scan might be useful for better localization of abnormal bone scan activity and in the assessment of the adjoining bone tissues. An October 2003 treatment entry notes that the Veteran reported complaints including foot pain. She described her foot pain as a three out of ten in severity. A diagnosis was not provided at that time. An October 2003 treatment report, on that same day, indicates that the Veteran had chronic foot pain at the bottom of her medial malleolus. It was noted that she had undergone a bone scan and x-rays, but that she continued to have pain. The assessment was foot strain. A December 2003 treatment entry notes that the Veteran had complaints including foot pain. She described her pain as a four out of ten in severity. There was a notation that she was told to use ice. A diagnosis was not provided at that time. A December 2003 individual sick slip notes that the Veteran had bilateral plantar fasciitis and that she would follow-up with a podiatrist. A June 2005 treatment entry notes that the Veteran was seen for a profile update. The assessment included bilateral foot pain. A June 2005 radiological report, as to the Veteran's bilateral feet, notes that there was no evidence of a bony abnormality, but that there were bilateral metatarsus primus varus-hallux valgus deformities. The examiner stated that there were no significant hypertrophic bony changes seen to affect the dorsomedial aspects of the distal great metatarsals, but that a thin, linear, metallic body in the volar aspect of the soft tissues associated with the proximal phalanx of the great toe, was noted. The examiner stated that the focus had the appearance of a distal segment of a needle. The impression was chronic changes as described and a metallic foreign body associated with the left great toe as described. An August 2005 treatment report notes that the Veteran was on a profile for bunions and a foreign body in her feet. A radiological report, at that time, indicates that there was no evidence of an acute bony abnormality, but that there were bilateral metatarsus primus varus-hallux valgus deformities. The examiner stated that there were no significant hypertrophic bony changes seen to affect the dorsomedial aspects of the distal great metatarsals. The examiner also reported that a thin, linear, metallic density foreign body in the volar aspect of the soft tissues associated with the proximal phalanx was noted and that the focus had the appearance of the distal segment of a needle. The provisional diagnosis was bilateral bunions and a foreign body (needle) in the left great toe. A September 2005 treatment report indicates that the Veteran complained of bilateral foot pain without an injury. The Veteran reported that she had left foot pain for two years since a road march and that she had right foot pain for five months. The assessment was bilateral tibial sesamoid nonunions and bunions. A September 2005 radiological examination report, as to the Veteran's feet, on that same day, relates an impression of a broken needle in the plantar surface beneath the left great toe proximal phalanx, and hallux valgus, bilaterally, with possible bunion formations, greater on the left side. Another September 2005 treatment entry, on that same day, notes that the Veteran was seen for bilateral bunions and a foreign body (needle) in the left great toe. A diagnosis was not provided at that time. A subsequent September 2005 treatment entry notes that the Veteran had symptoms of bilateral bipartite sesamoid nonunion and bunions. The assessment was bilateral sesamoid nonunion symptoms, with rebound pain after injections. A September 2005 treatment entry, on the same day, indicates that the Veteran was seen for severe foot pain. A diagnosis was not provided at that time. An October 2005 treatment entry relates that the Veteran was seen for a follow-up of bilateral foot pain. A diagnosis was not provided at that time. A post-service May 2011 VA foot conditions examination report includes a notation that the Veteran's claims file was reviewed. The examiner reported that the Veteran stated that she had suffered bilateral foot pain since 2004. The examiner remarked that the Veteran had some bunions, but that they were found to be a pre-existing condition. It was noted that bunions themselves were not evidently symptomatic in service. The examiner indicated that the Veteran did have some soreness and tenderness over the great toes, maybe over the sesamoid where she had a previous injury or where she had some of her stress fractures. It was noted that the Veteran would have some soreness, aching, and tenderness with prolonged standing. The diagnoses were bilateral old bunions and residuals of a stress fracture to the feet. The examiner indicated that the Veteran's claims file documented some bunion deformity, a sesamoid-type pain, and maybe a stress fracture to the calcaneus. The examiner stated that on documentation, the Veteran had pre-existing bunions. The examiner maintained that there was no evidence that those were aggravated beyond the normal progression by service. The Board observes that medical evidence shows that the Veteran was treated for right foot and left foot problems, including for bunions and stress fractures, on multiple occasions throughout her period of service. The Board notes that a post-service May 2011 VA foot conditions examination report relates current diagnoses of bunions and residuals of stress fractures of the feet. The Board notes that the examiner, pursuant to the May 2011 VA foot conditions examination report, and after a review of the claims file, indicated that the Veteran had pre-existing bunions and that there was no evidence that her bunions were aggravated beyond the normal progression by service. The Board observes, however, that there is no evidence of treatment for any right foot or left foot problems prior to the Veteran's period of service. Additionally, the Veteran's June 2000 enlistment examination report solely includes a notation that the Veteran had slight hallux valgus, which was asymptomatic, and normal arches in both feet. The Board notes that the June 2000 enlistment examination report did not refer to any other right foot and left foot problems, including bunions and stress fractures. Further, the examiner stated that the Veteran's bunions were not evidently symptomatic in service, but her service treatment records clearly show treatment for bunions. Consequently, it is unclear if the examiner actually reviewed the Veteran's claims file. The Board further observes that the examiner did not specifically address the Veteran's reports of right foot and left foot problems during service and since service. The Board notes that the Veteran is competent to report right foot and left foot problems during service and since service. See Davidson, 581 F.3d at 1313. Thus, in light of the above, the Board finds that the examiner's opinion is not probative in this matter. The Board notes that the Veteran is currently diagnosed with a right foot disability (bunions and residuals of a stress fracture) and a left foot disability (bunions and a residual of a stress fracture). The Board finds the Veteran's reports of right foot and left foot problems during and since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Resolving all reasonable doubt in her favor, the Board concludes that service connection for a right foot disability, diagnosed as bunions and residuals of a stress fracture, and for a left foot disability, diagnosed as bunions and residuals of a stress fracture, is warranted. Therefore, service connection for a right foot disability, diagnosed as bunions and residuals of a stress fracture, and for a left foot disability, diagnosed as bunions and residuals of as stress fracture, is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board also notes that the Veteran's appeal, as to these issues, has been pending since June 16, 2006. ORDER Service connection for a right foot disability, diagnosed as bunions and residuals of a stress fracture, is granted. Service connection for a left foot disability, diagnosed as bunions and residuals of a stress fracture, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs