Citation NR: 9625723 Decision Date: 09/13/96 Archive Date: 09/15/96 DOCKET NO. 89-24 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for hallux valgus. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a back disability and a psychiatric disorder. 3. Entitlement to service connection for a back disability and a psychiatric condition. 4. Entitlement to service connection for refractive error. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from May 1965 to October 1965. This matter comes before the Board of Veterans' Appeals (the Board) from a July 1987 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied service connection for hallux valgus, a nervous condition, and a back condition claimed as lumbar scoliosis, spondylosis, and degenerative joint disease. The RO also denied entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a back disability and a psychiatric disability. In a Board remand dated in September 1990 it was noted that the veteran had raised the issue of entitlement to service connection for an eye disability. By rating action of September 1991, service connection for refractive error was denied by the RO. A timely Notice of Disagreement (NOD) was filed as to the claim. A decision has been made as to the claim of entitlement to service connection for hallux valgus, a back disorder and a psychiatric disorder. A decision has also been made as to the claims of entitlement to compensation benefits for claimed back and psychiatric conditions under the provisions of 38 U.S.C.A. § 1151. However, the claim of entitlement to service connection for refractive error has been remanded for further evidentiary development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his foot condition existed prior to service, but was aggravated therein, warranting service connection. It is contended that treatment by the VA in 1979 for foot problems, resulted in the veteran's claimed psychiatric and back conditions, for which he maintains entitlement to compensation should be established under the provisions of 38 U.S.C.A. § 1151. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a foot condition is well grounded. Further, the claims of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 or for service connection for a back disability and a psychiatric disability on the basis of incurrence or aggravation are not well grounded. FINDINGS OF FACT 1. A bilateral foot disorder, diagnosed as hallux valgus, clearly and unmistakably existed prior to the veteran's active duty service. 2. The medical board in service specifically found no aggravation of the pre-existing foot disorder occurred in service and the record is void of competent evidence indicating that veteran's pre-existing foot disorder permanently increased in severity during active duty service. 3. The veteran has not submitted, nor has he alleged the existence of, competent medical evidence showing that he developed back or psychiatric disabilities due to any VA treatment or failure to treat him, including specifically treatment of the feet in 1979. 4. The service medical records do not reflect any complaints, findings treatment or diagnoses of a back condition or a psychiatric condition; nor is there any evidence of a current back or psychiatric condition which has a nexus to the veteran’s period of service. CONCLUSIONS OF LAW 1. The presumption of soundness with respect to the veteran's foot condition is rebutted, and foot disorder was not aggravated in service. 38 U.S.C.A. §§ 1110, 1137, 1153, 5107 (West 1991); 38 C.F.R. § 3.306 (1995). 2. The claims of entitlement compensation benefits under the provisions of 38 U.S.C.A. § 1151, or to service connection for a claimed back and psychiatric disability, on the basis of incurrence or aggravation, are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the claims are well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for the veteran to be granted service connection, there must be evidence of both a service connected disease or injury and a present disability which is attributable to such disease or injury, otherwise, the claim is not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The veteran contends that entitlement to service connection is warranted for a foot condition, hallux valgus, which he maintains was aggravated during service The veteran also contends that a back condition and a psychiatric condition resulted from foot surgery performed at a VA facility in 1979, thus warranting an award of compensation benefits for these disorders under the provisions of 38 U.S.C.A. § 1151. In the alternative, the veteran contends that service connection is warranted for these disorders under the regulatory provisions of 38 C.F.R. § 3.303. Service medical records reflect that upon enlistment examination of November 1964 a foot condition was not noted. Hallux valgus was noted in an entry dated September 1965, and the veteran was referred for examination and evaluation by a medical examination board. Historically, the veteran reported that had had deformities of the toes and metatarsophalangeal joints since birth, which had not been troublesome prior to active duty. Since active duty the veteran complained of considerable pain, due to prolonged marching, running and wearing boots. Physical examination revealed hallux valgus. It was concluded that the veteran was not fit for induction or enlistment, but was fit for retention, although he elected separation. The final diagnosis was bilateral hallux valgus, bilateral, congenital, severe, with associated exostoses. The medical board concluded the condition had existed prior to service and was not aggravated in service. Upon VA examination of December 1965, the diagnosis was hallux valgus deformity of the right big toe. Service connection for a foot condition was denied by rating action of March 1966. The record reflects that the veteran was hospitalized by the VA two times in 1979 for treatment of foot problems. Initially, in April 1979, the veteran complained of bilateral hallux valgus and bunions of the feet. A bilateral Keller bunionectomy procedure was performed for correction of hallux valgus, which the operation report indicated was well tolerated by the veteran. X-rays of both feet were taken in October 1979. The X-ray report stated that there was erosion with osteolytic changes of the medial and lateral margin at the distal end of the first metatarsal, which could represent post surgical residual. Similar changes, less marked were noted on the left foot, also described as probably post surgical. The veteran was again hospitalized at a VA facility in October 1979 for lengthening of the extensor hallucis longus, of the right foot, to correct previous Keller procedure of the right foot. A hospital summary reflected that the veteran had undergone surgery with good correction of the problem, and no intra or post-operative complications and no neurological deficits. VA outpatient records reflect that the veteran was seen by a social worker in October 1979. At that time he reported he had been unable to work due to his foot disorders, that he had used his sick and annual leave and had received his last pay check the week before. His wife had to go to work and they had three children. He was described as a little anxious, and awaiting the results of medical treatment. In November 1979, a record shows that the veteran was seen for complaints of nervousness, anxiety and sleep disturbance. It was noted that the veteran was in an anxious and depressive state secondary to his physical condition. An entry dated in January 1983 showed that the veteran was seen for complaints of low back pain. Physical examination revealed a growth at the thoracic spine area described as an infected sebaceous cyst. An entry dated January 1984 also shows that the veteran complained of low back pain, but had no problems with his feet, with his “space shoes.” An entry dated in February 1985 reflected that the veteran had an infected sebaceous cyst of the back, which showed almost no improvement, this was treated, however, and was healing well following treatment. A private medical report dated in June 1986 was submitted for the record. The veteran complained of foot problems and lumbosacral strain and pain, secondary to prolonged guarded gait and limping. X-ray films revealed mild lumbar scoliosis, spondylosis, and degenerative disc disease. The over assessment included back strain, and upper motor neuron disease. A private medical report from the same source dated in March 1988 showed that the veteran complained of recurrent low back pain, referred to the X-ray films of 1986 and made an assessment similar to that made in 1986 was again made. A VA examination was conducted in June 1987 at which time the veteran complained of swelling of both feet, and difficulty with balancing when standing and walking. A diagnosis of bilateral hallux valgus was made. The examiner noted that surgical treatment had been complicated and that the condition had been aggravated as described. Analysis Service connection may be granted for a disorder incurred or aggravated by active duty. 38 U.S.C.A. § 1110 (West 1991). A veteran who served during wartime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1137 (West 1991). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during 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 (West 1991); 38 C.F.R. § 3.306 (a) (1995). The United States Court of Veterans Appeals has held that intermittent or temporary flare-ups of a pre-existing injury or disease during service do not constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). In this case, objectively, a foot disorder was not noted upon the enlistment examination report. However, clearly the presumption of soundness upon enlistment with respect to a foot condition was rebutted by the veteran’s own statements given as a medical history, indicating that a foot deformity had been present since birth. Hence, the veteran's feet were not sound at enlistment, and service connection may only be granted upon a showing of aggravation. In examining the record for evidence of aggravation the Board observes that the veteran's foot disorder became symptomatic apparently three weeks after he commenced his period of basic training. Thereafter, a medical Board convening in September 1965 concluded that the condition was congenital, existing prior to service and not having been aggravated therein. Significantly, the records showing the veteran's removal from duty due to a foot disorder do not reveal any evidence of permanent aggravation, or any evidence of a superimposed injury or event which could be associated with a finding of aggravation. Indeed, the evidence of record, including those records relating to the veteran's post service surgery occurring nearly 15 years following service, do not show that the underlying foot disorder was worsened in any permanent manner beyond that degree of disability that existed at entrance to active duty. The record contains no competent evidence showing that the underlying foot disorder worsened in service, or any competent evidence that they were subjected to trauma, injury or disease causing the purported increase. To the contrary, the only medical opinion of record on this point is flatly against the claim. The veteran, however, as a lay affiant, is not competent to offer a medical opinion as to the aggravation of any pre-existing foot disorder. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In this respect, while the veteran can report his symptoms, his statements as to the cause for any claimed aggravation must be supported by competent evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board now turns to the issues of entitlement to compensation based upon under the provisions of 38 U.S.C.A. § 1151 for claimed back and psychiatric conditions. Specifically pertinent for claims to entitlement under the provisions of 38 U.S.C.A. § 1151, the VA is required to pay disability compensation for disability, aggravation of disability or death, to a veteran "in the same manner as if such disability, aggravation or death were service- connected," under the following circumstances: Where any veteran shall have suffered an injury, or aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation awarded under any of the laws administered by the VA, or as the result of having submitted to an examination under any such law, and not the result of the veteran's own willful misconduct, and any such injury or aggravation results in additional disability to or the death of the veteran. The case of Gardner v. Derwinski, 1 Vet.App. 584 (1991), Aff'd Sub Nom., Gardner v. Brown, 5 F.3d. 1456 (Fed. Cir. 1993), Brown v. Gardner, 115 S. Ct. 552 (1994) declared invalid the provisions of 38 C.F.R. § 3.358(c)(3) (1994), requiring VA fault or accident prior to recovery under 38 U.S.C.A. § 1151. In December 1994, the United States Supreme Court (Supreme Court) held that VA is not authorized by § 1151 to exclude from compensation the "contemplated or foreseeable" results of non negligent medical treatment, as was provided by 38 C.F.R. § 3.358(c)(3). In Footnote 3 of the opinion, the Supreme Court suggested that § 1151 does not authorize compensation for all injuries that might be said literally to "result" from VA treatment. Subsequently, the VA Secretary sought an opinion from the Attorney General as to the scope of the exclusion from § 1151 coverage contemplated by the Supreme Court's decision. In a memorandum to the Secretary dated January 20, 1995, the Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, expressed the view that Footnote 3 of the Gardner decision ". . . is read most accurately as excluding from coverage under § 1151 only those injuries that are certain, or perhaps the very nearly certain, result of proper medical treatment." In March 1995, the VA amended 38 C.F.R. § 3.358(c)(3). 16 Fed. Reg. 14222-23 (1995). To be well grounded, a claim need not be conclusive, but must be accompanied by evidence that just more than a purely speculative basis for granted entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet.App. 361, 362-63 (1992). In Contreras v. Brown, 5 Vet.App. 492 (1993), the veteran sought compensation pursuant to § 1151 for a back disability allegedly caused by VA treatment of a nonservice-connected right knee disability. He also contended that his left knee was injured within a VA vocational rehabilitation program. The Court, specifically citing to Gardner, found that the veteran had failed to submit any medical evidence that his current left knee and spine disabilities resulted from VA surgery or treatment. Contreras, 5 Vet.App. at 495. The Court, found that the veteran's own statements were not competent evidence of medical causation. Therefore, the claim was not well grounded as a matter of law. Id. at 495- 496. The Court stated, in pertinent part: that even accepting his assertions as true, he has not submitted any evidence that could plausibly establish that those incidents caused his current left knee and spine disabilities. Absent such evidence of a causal relationship, the veteran has not submitted a well-grounded claim, as a matter of law, for § 1151 benefits for those disabilities. Id. at 496. In the current case before the Board, the veteran has similarly failed to submit any competent evidence that his claimed back and psychiatric conditions resulted from VA treatment of the foot in 1979. The veteran underwent two hospitalizations in 1979, both for treatment of his foot conditions. Both hospitalization summaries are of record as are VA outpatient records monitoring the veteran’s condition following VA treatment. Both hospitalization summaries indicated that the procedures were tolerated well, and had not resulted in complications, to include neurological complications. VA outpatient records did show that the veteran complained of anxiety in October and November 1979, just prior to and just following the second VA hospitalization. The initial entry describes the background to the complaints in terms of financial and family difficulties rather than as the result of treatment. The second entry describes the complaints as arising from concern about his condition, but does not indicate the complaints arose from VA treatment. The record thereafter is entirely negative for further psychiatric complaints. The complaints of anxiety shown twice in 1979 therefore cannot be regarded as more than an acute condition which occurred in conjunction with the veteran’s second hospitalization. No medical provider linked them to VA treatment. Clearly, the medical evidence does not show that a chronic, and current psychiatric disability resulted from VA treatment of the foot either in April 1979 or in October 1979. Further, the veteran’s earliest complaints of back problems were not documented until August 1982. At that time, the medical evidence showed that the veteran had an infectious cyst. It was not until 1986 that diagnoses of mild lumbar scoliosis, spondylosis, and degenerative disc disease were made. Again, none of the medical records referring to back problems even suggested that there was a relationship between a back conditions and the treatment provided by the VA in 1979. The only “opinion” provided which purported to establish a link between the claimed psychiatric and back conditions and treatment received from the VA in 1979 for the veteran’s foot problems was provided by the veteran himself, with the assistance of his representative. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The record does not reveal that the veteran or his representatives possess any medical expertise, and they have not claimed such expertise. Thus, the veteran's lay medical assertions, as well as those of his representatives, to the effect that his currently claimed disabilities were either caused as the result of either his medical treatment by the VA in 1979 have no probative value. On the issue of medical causation, the Court has been clear: "Lay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose" and cannot be considered by the Board. Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991). Further, where the evidentiary assertions are inherently incredible or beyond the competence of the person making the assertion, the Court has indicated that the claim may be found not well grounded by the Board. King v. Brown, 5 Vet.App. 19 (1993). In conclusion in this case, the veteran’s claims are therefore not considered well grounded. The Board further notes that the same basic analysis applies to claims for service connection for a back disorder on the basis of incurrence or aggravation in service, or a psychiatric disorder. The basic statutory and regulatory criteria applicable in this case provide that service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Regulations also provide that 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). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). As to the veteran’s claims there is no evidence of any back or psychiatric condition during service, no evidence of a current psychiatric disability, although the most recent medical evidence suggests that the veteran may have a current back condition; and no competent medical evidence establishing a nexus between currently claimed conditions and the veteran’s period of service. Therefore the veteran’s claims for service connection are also not well grounded. When the Board addresses in its decision a question that has not been addressed by the RO, in this case, whether the veteran's claim is not well grounded, it must be considered whether the veteran has been given adequate notice to respond and, if not, whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility the veteran's claims and his failure to meet the initial burden of the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. The Board must further point out that under the holding in Robinette v. Brown, 8 Vet.App. 69 (1995), even had the veteran alleged that a competent medical authority had told him that the VA treatment had resulted in disability, such lay evidence could not serve to establish a well grounded claim. Robinette does indicate that, had the veteran alleged the existence of such medical evidence that, if true, would have made the claim plausible, the VA would have a duty under 38 U.S.C.A. § 5103(a) to advise him to submit such evidence to complete his application for benefits. This case, however, is clearly distinguishable from Robinette because no such allegation is of record. Accordingly, since the facts of this case would not invoke the 5103(a) duty under Robinette in any event, the failure of the RO to consider Robinette is not prejudicial. ORDER Entitlement to service connection for a bilateral foot condition is denied. Evidence of a well-grounded claim not having been submitted, the claims of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for back or psychiatric disabilities, or for service connection for a back or psychiatric disability, on the basis of incurrence or aggravation, is denied. REMAND The veteran has also raised the issue of entitlement to service connection for refractive error of the eyes. Vision upon entrance was 20/30 bilaterally. His vision upon separation was 20/200 in the right eye, and 20/100 in the left eye, and myopia was noted. Potentially applicable to these claim is 38 C.F.R. § 3.303(c), given the fact that the veteran served for approximately 6 months. There are medical principles which are so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Similarly, manifestations of lesions or symptoms of chronic disease from date of enlistment or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.303(c). The Board recognizes that 38 C.F.R. § 3.303(c), provides that refractive error of the eye is not a disease or injury within the meaning of applicable legislation governing the awards of compensation benefits and that myopia is listed as a type of refractive error in the current VA Manual M21-1 (M21-1), Part 6, § 7.09. This provision does not stand in the same status as a law or regulation or case cite in terms of being part of the record in this case. Further, the pertinent guidance in M21-1 does not rule out service connection for myopia entirely. It also appears from the manual provisions that a medical opinion must be obtained to properly evaluate the claim. See, for example, Colvin v. Derwinski, 1 Vet.App. 171 (1991). As there is no medical opinion in this case establishing the etiology of the eye condition, nor is there current evidence of record which establishes that the veteran has a current eye condition, the case shall be remanded to address those matters. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names, addresses and approximate dates of treatment for all health care providers from whom the veteran received treatment or testing of the eyes since his separation from service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of any treatment records identified by the appellant that have not been previously secured. 2. The veteran should be scheduled for an eye examination to determine the nature, extent, onset and probable etiology of any eye disability found. The examiner should conduct the evaluation mindful of the provisions found in VA Manual M21-1 (M21-1), Part 6, § 7.09. The specialist should be requested to review the claims file and provide an opinion as to whether any myopia or other eye disability found constitutes either refractive error or a developmental defect. 4. Thereafter, the RO should readjudicate the issues on appeal. If any benefit sought on appeal is not granted, a supplemental statement of the case should be issued and the veteran and his representative provided the applicable period in which to respond. Thereafter, the case should be returned to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -