Citation Nr: 1752440 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-20 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right foot disorder with hallux valgus deformity (hereinafter right foot disorder). 2. Entitlement to service connection for a left foot disorder. 3. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) due to claimed right and left foot disorders. ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1972 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The June 2011 rating decision denied entitlement to service connection for a right foot disorder; the March 2012 rating decision denied entitlement service connection for a left foot disorder and a TDIU. In correspondence of November 2013, the Veteran withdrew his request for a hearing before the Board. The Board remanded the case in April 2015 for additional development. The case has returned to the Board for further appellate action. FINDINGS OF FACT 1. Right foot hallux valgus deformity and hammer toes did not manifest in service and are not caused or aggravated by an in-service injury, event, or disease. 2. Left foot hallux valgus deformity and hammer toes did not manifest in service and are not caused or aggravated by an in-service injury, event, or disease. 3. The Veteran does not have any service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot hallux valgus deformity and hammer toes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for left foot hallux valgus deformity and hammer toes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309 (2017). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Remand Compliance As noted in the Introduction, the case was remanded to the Agency of Original Jurisdiction (AOJ) in April 2015 for additional development. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a November 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. See 38 U.S.C.A. § 5102(a)(1) (West 2014); 38 C.F.R. § 3.159(c) (2017). Service treatment records (STRs, post-service VA treatment records, submitted evidence, and lay statements have been associated with the claims file. VA must provide a medical examination or obtain a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5102A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017). The Veteran was afforded VA examinations in June 2011, March 2012, and April 2016 for the issues addressed in this decision. The Board finds that an additional medical examination or opinion is not necessary to decide the Veteran's claim. See Barr v. Nicholson, 12 Vet. App. 303, 311 (2007). The Veteran has not identified any additional relevant evidence, nor does the record otherwise indicate that there is outstanding relevant evidence to obtain. Thus, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to his claim is required for VA to comply with its duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other ground, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection for Right and Left Foot Disorders 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 granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran served as a construction trainee in the United States Army; he received a National Defense Service Medal as a Rifle Sharpshooter. The Veteran contends that he incurred a right and left foot disorder with hallux valgus deformity while in service. Service treatment records contain the report of a December 1971 induction examination. The Veteran checked a box in a medical history questionnaire indicating a history of "foot trouble." However, the check-mark was either scratched out or initialed by the examiner, who noted no foot abnormalities. The examiner did note "borderline ...," but the rest of the note was illegible. In January 1973, the Veteran sought treatment for "sore feet." An X-ray was negative for a tarsal condition. The diagnosis was bilateral pes planus and the Veteran was provided arch supports. There was no mention of ill-fitting footwear. The Veteran was permanently limited in duties due to bilateral flat feet. He was permitted to march at his own pace; prohibited from running or jumping, and recommended for a non-combat occupation. The Veteran sought treatment for pain on the balls of his feet in February 1973. At this time, the Veteran complained that that his feet were "appearing crooked." The examiner continued to diagnose only mild pes planus. In a March 1973 physical examination, the examiner noted no foot abnormalities. The RO received the Veteran's claim for service connection for a "right foot condition" in November 2010. A review of treatment records from the Tampa, Florida Veteran's Affairs Medical Center (VAMC) show that the Veteran sought regular consultation, evaluation and treatment from September 2009 to April 2016. Throughout the period, VA podiatrists and podiatry department staff saw the Veteran on a regular basis for both diabetic foot care and toenail care. He received guidance as to foot hygiene, bathing, and moisture application. The treating podiatrists provided diagnostic impressions of onychomycosis and diabetes mellitus. In June 2011, the Veteran was afforded a VA examination of his feet. The examiner reviewed the Veteran's claims file, considered his subjective statements as to the on-set of his right and left foot disorders, and conducted a physical examination. The examiner provided diagnostic impressions of osteoarthritis, with hallux valgus and bunion formation, further opining that the right foot showed more severe symptoms. He also reported the presence of calcaneal enthesophytes. Furthermore, x-ray imaging revealed that there was degenerative change in the metatarsophalangeal joints of the big toes, with hallux more severe on the right; hammertoe deformities; and moderate posterior calcaneal enthesophytes. However, plantar arches were maintained in all of the three x-ray imaging studies. The examiner stated that the diagnosed hallux valgus was less likely as not (less than 50 percent probability) caused or the result of the Veteran's service. As a rationale, the examiner noted that there was no medical documentation in the Veteran's STRs of hallux valgus. As a consequence, a nexus could not be drawn between the current right and left foot disorders and service. There was no diagnosis of bilateral pes planus In March 2012, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's subjective accounts, and conducted a physical examination. The Veteran, according to the examiner, was seeking entitlement for bilateral pes planus and bilateral bunion deformities. The examiner noted that the Veteran denied injury in service but contended that he experienced "discomfort" in service as a result of wearing tight fitting boots. The Veteran also reported that he was currently experiencing constant pain in his great toes as well as numbness and discomfort from his flat feet. The examiner provided assessments of onychomycosis of both feet; hallux abducto valgus (HAV) with bunion of both feet; and type II diabetes mellitus with peripheral neuropathy. The examiner noted no indications of pes planus. This examiner opined that the present right foot and left foot disorders were less likely as not a result of service. The examiner provided a rationale which largely mirrored that of June 2011 examiner. In November 2015, VA received the Veteran's health summaries from the Social Security Administration (SSA). These summaries noted that the Veteran had diminished sensation in his forefeet; elongated, thickened, discolored, dystrophic nails with subungual debris; and HAV with bunion bilaterally. Pursuant to an April 2015 remand directive, the Veteran was afforded a VA foot conditions examination in April 2016. The examiner reviewed the claims file, considered the Veteran's lay contentions, and conducted a physical examination. Hammer toes, HAV, and osteoarthritis of the right foot, according to the examiner, are the diagnoses applicable to the Veteran's right and left feet. Specifically, the right foot provided findings of: an absence of fracture; moderate hallux valgus deformity of the first toe; hammertoe deformities; and a small posterior enthesophyte. However, the plantar arch was maintained and there were not bone erosions. With the exception of a "mild hallux valgus," the left foot provided identical findings. The examiner noted, "There is no pes planus on exam." Given that the Veteran has current right and left foot disorders, the required element of a current disability has been met. See Shedden, supra. However, in general, a Veteran seeking disability benefits must establish not only the existence of a disease, but also an etiological connection between his military service and the disease. Id. When considering the pertinent evidence in light of the above-noted legal authority, the Board finds that service connection for either right foot disorder or left foot disorder is not warranted. The evidence of record indicates that the Veteran had no foot injuries or illnesses during service. Although the Veteran was diagnosed with mild pes planus and provided arch supports during active service, none of the examiners or outpatient clinicians noted that pes planus was evident during their encounters with the Veteran. Furthermore, the Veteran's DD-214 is silent as to the Veteran's sustaining either a right or left foot injury during active service. In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the etiology of bilateral foot disorders, conditions involving specialized knowledge of podiatry is beyond the scope of lay observation. See id. Thus, a determination as to the etiology of the Veteran's right foot disorder and left foot disorder is not susceptible of lay opinion and requires specialized training. See Jandreau, supra. (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, 6 Vet. App. at 469-70. The Board notes that there are no exceptions to the Court's Jandreau doctrine. Therefore, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of his right foot disorder and his left disorder. See 38 C.F.R. § 3.159(a)(1) (2016) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). As set forth above, the June 2011 and March 2012 VA examiners opined that the Veteran's right foot disorder and left foot disorder were less likely than not (less than 50 percent probability) incurred in or caused by service. To support this opinion, the examiners stressed that the Veteran STRs are silent as to either HAV or osteoarthritis. In summary, the evidence of record does not support that the Veteran's current right left foot disorders were incurred in or aggravated by active service, foreclosing the possibility of nexus between right foot disorder as well as left foot disorder and active service. III. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The RO received the Veteran's claim for a TDIU in October 2011. The Veteran noted that he could not work because of diabetes and bilateral foot disorders. In this case, the evidence of record shows that the Veteran is not service connected for any disability. Therefore, entitlement to a TDIU must be denied as a matter of law. ORDER Service connection for right foot hallux valgus deformity and hammer toes is denied. Service connection for left foot hallux valgus deformity and hammer toes is denied. A total disability rating based on individual unemployability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs