Citation Nr: 1808668 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-01 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left foot disability other than eczematous dermatitis of the left heel with removal of toenails, to include left heel calcaneal spurs, including as secondary to a service-connected disability. 2. Entitlement to service connection for a right foot disability other than eczematous dermatitis of the right heel with removal of toenails, to include right heel calcaneal spurs and right foot bunion, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Navy from November 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. In May 2016, the Board remanded the issue of service connection for a bilateral foot disability for a VA examination with a medical opinion, as well as the issue of an increased disability rating in excess of 20 percent for the left eye disability for a VA eye examination to ascertain the current severity of the service-connected left eye disability, and subsequent readjudication of the appeals. In July 2016 and June 2017, the Agency of Original Jurisdiction (AOJ) provided VA eye examinations. In August 2016, the issues were readjudicated. In August 2017, the Board denied an increased disability rating in excess of 20 percent for the service-connected left eye disability and remanded the issues of service connection for left and right foot disabilities other than eczematous dermatitis of the left heel with removal of toenails, to include left and right heal calcaneal spurs and right foot bunion, including as secondary to a service-connected disability for a supplemental VA medical opinion addressing the significance of the Veteran standing watch in wet environments with shoes that were sometimes too small for the feet during service, and subsequent readjudication of the appeal. Because a supplemental VA medical opinion was obtained in September 2017, and the appeal was readjudicated in December 2017, the Board finds that there has been compliance with the prior remand directives with respect to the service connection appeal for the left foot disability. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The service connection appeal for the right foot disability is being remanded for further development for reasons described below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017) and 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for the right foot disability other than eczematous dermatitis of the bilateral heels with toenail removal, to include right heel calcaneal spurs and right foot bunion, including as secondary to a service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. There was no in-service left foot injury or disease other than a fungal infection, including no heel injury or disease, and the only in-service left foot symptoms were corns and manifestations of a fungal infection. 2. The current left foot disability was manifested many years after service and is not causally or etiologically related to active service, to include any incident or event therein. 3. The current left foot disability was neither caused nor worsened beyond the natural progression by the service-connected eczematous dermatitis of the heels with toenail removal. CONCLUSION OF LAW The criteria for service connection for a left foot disability other than eczematous dermatitis of the left heel with removal of toenails, to include left heel calcaneal spurs, including as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the December 2007 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the Board hearing, the VLJ identified the issues on appeal and asked several questions throughout the hearing in order to elicit the Veteran's testimony regarding the alleged in-service foot injury or disease, past and current symptoms, diagnoses, and treatment for the feet. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the appeals process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In May 2016, the RO provided a VA examination with a medical opinion. In September 2017, a supplemental VA medical opinion was obtained pursuant to Board remand directives. Collectively, the VA examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal adjudicated herein. The VA examiner considered an accurate history of the foot disability as provided through interview of the Veteran and review of the record, and performed a thorough examination; therefore, the VA examiner had adequate facts and data regarding the history and condition of the claimed foot disability when providing the examination. For these reasons, the Board finds that the collective VA examination reports are adequate, and there is no need for further VA examination or medical opinion for the appeal adjudicated herein. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with left heel calcaneal spurs, which is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Service Connection for Left Foot Disorder Analysis The Veteran contends that the current heel spur disability is related to service. He asserts that he walked in wet trenches while serving in the Philippines and developed jungle rot over the left little toe. He reports that he experienced pain in both feet and had a skin rash over both heels during service. He believes that he developed bilateral calcaneal spurs due to the jungle rot infection he experienced during service. In the alternative, he asserts that the heel spur disability was either caused or worsened beyond the normal progression by the service-connected eczematous dermatitis of the heels with toe removal. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates no left foot injury or disease during service. The only left foot symptoms were corns and manifestations of a fungal (skin) infection. In August 1964, the Veteran received treatment for a corn on the left smaller toe. In September 1964, the Veteran received treatment for a split in the skin tissue of the left great toe at the proximal joint on the bottom of the toe, which appeared to be attributable to a fungal infection. In August 1966, the Veteran received treatment for having a corn on the left foot small digit. Although the Veteran has reported that he frequently walked, there was no complaint, report, diagnosis, or treatment for the heels during service. Rather, the weight of the evidence shows no in-service left foot injury or left foot disease other than skin symptoms involving the feet. Because the service treatment records are complete, show in-service treatment for left foot problems such as corns and fungal infection with no mention of any other problems involving the left foot, and the left foot was clinically evaluated at the June 1967 service separation examination and determined to be normal, the Board finds that a left foot injury, any left foot disease other than fungal (skin) infection, and other left heel symptoms such as heel spur with pain are conditions that would have ordinarily been recorded during service had they occurred; therefore, the lay and medical evidence generated contemporaneous to service, which shows no left foot injury or disease other than a fungal infection, and no symptoms other than corns during service, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of left foot injury, left foot disease other than fungal infection, or left heel symptoms during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The weight of the evidence shows that the current left heel spur disability, which was manifested many years after service, was not causally or etiologically related to service. As noted above, there was no complaint, report, diagnosis, or treatment for the heels during service, and the feet were clinically evaluated as normal at the June 1967 service separation examination. The earliest evidence of heel spurs is shown in May 2016, approximately 49 years after service separation. Considered together with the absence of any in-service left foot problems other than skin-related symptoms such as corns and fungal infection, the 49 year gap between service and heel complaints is another factor that weighs against a finding of service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). After review of the record and interview and examination of the Veteran, the May 2016 VA examiner opined that it was less likely than not that the bilateral heel spur disability was incurred in or caused by service or caused or worsened beyond the natural progression by the service-connected eczematous dermatitis of the left heel with toenail removal. In support of the medical opinion, the May 2016 VA examiner explained that the record showed no evidence of a calcaneal heel spur or treatment for a heel spur, and a review of medical textbooks show that the etiology of a heel spur is not infection or fungal disease but repeated damage to the bottom of the heel causing calcium deposit build-up on the bottom of the heel bone causing a spur-shaped deformity. In the August 2017 supplemental VA medical opinion, the May 2016 VA examiner further explained that standing in wet environments or while wearing small shoes did not cause friction to damage the bottom of the feet. The May 2016 VA examiner also opined that it was less likely than not that the heel spur disability was worsened beyond the natural progression by the service-connected eczematous dermatitis of the heels with toenail removal and explained that there was no evidence of a worsening of the disability due to the service-connected eczematous dermatitis. Because the May 2016 VA examiner is trained as a physician and provided sound rationale based on accurate facts and data, the May 2016 VA medical opinion and August 2017 supplemental VA medical opinion are of significant probative value. There is no other competent medical opinion of record. Although the Veteran has asserted that the current left heel spur disability was caused by service or was otherwise caused or worsened beyond the natural progression by the service-connected eczematous dermatitis of the heels with toenail removal, and he is competent to report any left foot (i.e., heel) symptoms that he has experienced at any time, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to render a competent medical opinion the etiology of the left heel spur disability. In this case, the weight of the evidence establishes there was no left heel injury or disease during service and symptoms of the left foot disability (i.e., heel spur) first began many years after service separation. The diagnosis and etiology of heel spurs require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is "medically complex" for lay diagnosis); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). For these reasons, the Veteran's purported opinion that the current left foot disability is related to service or was caused or worsened beyond the natural progression by the service-connected eczematous dermatitis of the heels with toenail removal is of no probative value. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a left foot disability other than eczematous dermatitis of the left heel with removal of toenails, to include left heel calcaneal spurs, including as secondary to a service-connected disability, so the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left foot disability other than eczematous dermatitis of the left heel with removal of toenails, to include left heel calcaneal spurs, including as secondary to a service-connected disability, is denied. REMAND Service Connection for a Right Foot Disability The issue of service connection for a right foot disability other than eczematous dermatitis of the right heel with removal of toenails is remanded to ensure compliance with the prior remand directives. In August 2017, the Board remanded the service connection appeal for a right foot disability for a supplemental VA medical opinion from the May 2016 VA examiner addressing the significance of the Veteran standing watch during service in wet environments with shoes that were sometimes too small for his feet and the Veteran's history of a right foot bunion and right foot surgery (i.e., a bunionectomy) in 1980. The May 2016 VA examiner did not provide the requested opinion, explaining that he did not perform a right foot bunion examination when he previously examined the feet (i.e., in May 2016) so he was unable to opine regarding the right foot bunion and its surgery. In the remand orders, the Board specifically advised that another medical examination was not necessary unless needed to provide the requested opinion. In this case, it appears from the May 2016 VA examiner's statement that a VA examination is needed to provide the requested medical opinion; however, no attempt to schedule another VA examination for the foot has been made, and no medical opinion has otherwise been obtained addressing the significance of the Veteran standing watch during service in wet environments with shows that were sometimes too small for his feet and the Veteran's history of a right foot bunion and right foot surgery (i.e., a bunionectomy) in 1980. Where the RO does not comply with a remand by the Board, the Board errs as a matter of law when it fails to ensure compliance. In consideration of the foregoing, the Board must again remand the matter. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the issue of service connection for a right foot disability other than eczematous dermatitis of the right heel with removal of the toenails is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket. Expedited handling is requested.) 1. Schedule a VA examination of the right foot. The examiner should state, for each diagnosis, an opinion on the following: (a) Is it as likely as not (i.e., to at least a 50 percent degree of probability) that any current RIGHT foot disability (other than eczematous dermatitis of the right heel with removal of toenails) had its onset during service or was otherwise causally or etiologically related to service, to include any symptomatology, event, or incident therein? The examiner should explain the answer. For the purpose of providing the medical opinion, the examiner should address the significance of the following: 1) the Veteran standing watch in wet environments with shoes that were sometimes too small for the feet as part of his military duties during service; 2) a history of a right foot bunion; and 3) and a history right foot surgery after service in 1980. (b) Is it as likely as not (i.e., to at least a 50 percent degree of probability) that any current RIGHT foot disability (other than eczematous dermatitis with right calcaneal spur and removal of toenails) was caused by the service-connected eczematous dermatitis of the bilateral heels with toenail removal? The examiner should explain the answer. (c) Is it as likely as not (i.e., to at least a 50 percent degree of probability) that any current RIGHT foot disability (other than eczematous dermatitis with right calcaneal spur and removal of toenails) was worsened beyond the natural progression by the service-connected eczematous dermatitis of the bilateral heels with toenail removal? The examiner should explain the answer. For the purpose of providing the medical opinion, the examiner should address the significance of the following: (1) a history of a right foot bunion, and (2) and a history right foot surgery after service in 1980. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based should be set forth in the report. 2. Thereafter, the remanded issue should be readjudicated. If any benefits sought on appeal remains denied, provide the Veteran and the representative with a supplemental statement of the case. Thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs