Citation Nr: 0728365 Decision Date: 09/10/07 Archive Date: 09/25/07 DOCKET NO. 03-33 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active military service from October 1947 to August 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In April 2004, the Board remanded this case for the veteran to be afforded a Board hearing. In October 2004, the veteran testified before a Veterans Law Judge at the RO. This Veterans Law Judge has since left employment with the Board. Although the veteran was offered an additional Board hearing, he declined to have such a hearing. In March 2006, the Board determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a bilateral foot disorder. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2006, the Court granted the joint motion to vacate the Board's decision, and remanded the case to the Board for action consistent with the motion. In November 2006, the Board determined that new and material evidence had been received to reopen the claim of service connection for a bilateral foot disorder. The issue of service connection for bilateral foot disorder was remanded. The case has been returned to the Board for appellate adjudication. FINDING OF FACT A bilateral foot disorder is not attributable to service. CONCLUSION OF LAW A bilateral foot disorder was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, the veteran was sent a VCAA letter dated in November 2002. Thereafter, he was sent another VCAA letter in November 2006. Cumulatively, the VCAA letters fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in July 2003. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). There were no complaints, findings, treatment, or diagnosis of any foot disease or injury during service. The veteran was afforded a separation examination in August 1950. At that time, the examiner indicated that evaluations of the bones, joints, muscles, and feet, were normal. The veteran was separated from service in August 1950. In November 1955, the veteran applied for VA compensation benefits. He reported that he had incurred a lung disorder during service. He made no mention of any foot disorder. In February 1980, the veteran was seen by a private physician, R.E.O., M.D., for a possible right inguinal hernia. At that time, the veteran reported that he had fractured his feet while he was in the service in the Korean War. There were no indicated findings regarding the feet at that time. The veteran also reported that he had suffered a ruptured disc in his back in the 1960's. In June 1991, the veteran again applied for VA compensation benefits. He reported that he had incurred hearing loss during service. He made no mention of any foot disorder. In August 1996, the veteran was provided private cardiovascular treatment. At that time, the veteran denied having any significant muscular, skeletal, bone, or joint abnormalities. Physical examination of the extremities revealed no clubbing, cyanosis, or edema. March and June 1997 examinations revealed the same findings. In June 1998, the veteran applied for VA compensation benefits. He reported that he had incurred, in pertinent part, a bilateral foot disorder during service, in 1949. Thereafter, VA medical records were obtained. October 1999 x-rays revealed no evidence of osteomyelitis or lesions of the foot bones. There were no fractures of either foot nor were residuals of old fractures identified. In May 2000, the veteran reported that he had bilateral foot pain. He stated that he had had foot problems for over 50 years. He related that he had suffered "broken ankles" while in the military. The assessment was bilateral foot pain. May 2000 x-rays revealed subluxation of the proximal phalanx of the right 5th toe. In a July 2000 letter, K.W.H., D.P.M., stated that the veteran had been seen in his office several months ago, complaining of bilateral foot pain. The veteran stated that during service, he was on a ship and his feet slid underneath a part of the ship where they became lodged. He indicated that the feet had to be extricated and had been painful ever since. It was noted that some marked bony spurs had formed around the base of the first metatarsal cuneiform area. The veteran had undergone surgery on his right foot to remove the spurs. K.W.H., D.P.M., stated that the findings at the time of surgery showed quite a bit of bony proliferation which was probably consistent with some type of trauma to the foot. It was noted that the veteran's feet were not seen before the time of service so there was no way to tell for sure if this was exactly the cause, but it was very possible that this could have caused it. In November 2002, a buddy statement was received from a person who served with the veteran in which this person indicated that the veteran had an accident aboard the USS Chicot AK-170 in about 1950. The nature of the accident was not indicated. In December 2002, Dr. O. submitted a letter in which he stated that the veteran had been treated in his family practice from approximately 1963 to 1992. The physician noted that the veteran had come to him on several occasions during the past year wanting the veteran to verify that he had problems with his feet. On a history and physical that was performed by this physician in February 1980, he had put on his review of systems that the veteran had fractured feet when he was in the service during the Korean War. As far as this physician knew, the veteran had not told any untruths with regard to his past medical history so he had no reason to doubt that he had fractured his feet during service. In July 2003, the veteran was afforded a VA examination. The claims file was reviewed. The veteran reported that he had a long history of painful feet which he related to trauma during service. However, the examiner reviewed the service medical records and noted that there was no documentation of any foot problems or of any treatment to the feet. The negative October 1999 x-ray of the feet was noted. Physical examination revealed multiple heel scars which were residuals of the bony spur excisions. The current assessment was chronic bilateral foot pain, undiagnosed. The examiner noted that the veteran had previously had negative x-rays of the feet, a whole body scan which showed age-related degenerative joint disease (in other body areas), and negative rheumatology clinic findings. A consultation from the podiatry clinic was requested. In September 2003, the veteran was seen by VA in the podiatry department. The veteran complained of feet pain. He reported that he broken both his feet 54 years ago while in the service and his feet had hurt since that time. Multiple right hammertoe deformities were present. In addition, the veteran had splaying of the forefoot. X-rays revealed no acute fracture, subluxation, dislocation, or osseous erosion. The veteran had right hammertoe deformities and splaying of the forefoot metatarsals. The impression was metatarsalgia secondary to 1st ray hypermobility bilaterally. The veteran was given over the counter (OTC) inserts. In October 2004, the veteran and his wife testified at a Travel Board hearing. At that time, the veterans stated that during service, in 1949 or 1950, he was aboard the USS Chicot AK-170 when he slipped and his feet went under a part of the ship. His feet were fractured and he had to be carried by three other service members. He indicated that he did not seek treatment immediately after service and was also refused treatment by VA as his feet were not service-connected. His spouse indicated that when she met the veteran, his shoes were untied and he told her that he could not tie his shoes because he hurt his feet in the Navy. The veteran submitted another buddy statement in which it was indicated that while a bad storm was occurring on board ship in service, this person and the veteran were tarping a cargo hole. The veteran was pulling the tarp when he slipped and his feet went under the angles which caused injury. Thereafter, additional VA treatment records were obtained. In January 2006, the veteran complained that his feet were "rotten away." The next month, the veteran was seen in the podiatry clinic. It was noted that he was having pain in the balls and heels of his feet. He had a 1st met-cuneiform exostectomy on both feet and a Morton's neuroma neurectomy performed to the 3rd interspace, previously. The veteran reported that the pain had existed for 30 years which was relieved by the neuroma excision for about 2 years, but then the pain returned. He tried using orthotics, but they did not work and made his feet worse. Physical examination was performed. The current diagnoses were neuroma of the 2nd interspace bilaterally with recurrent stump neuroma of the 3rd interspace of the right foot with bilateral metatarsalgia; plantar fasciitis, bilaterally; and onychomycosis of the toenails. The veteran was given steroid injections for pain as well as OTC inserts with metatarsal pads. In April 2006, the veteran again complained of feet pain. He indicated that the pain was located in the balls and heels of his feet. He reported that the steroid injections had not helped. He also indicated that he threw the OTC inserts away because they worsened the pain. Physical examination was performed. The diagnoses were: generalized pain which was likely neuropathic in nature, although idiopathic; plantar fasciitis, bilaterally; and onychomycosis. Several weeks later, it was again noted that the veteran reported having burning pain in his feet which sounded neurological. The veteran was subsequently diagnosed as having diabetes mellitus. In October 2006, the veteran underwent an electromyography (EMG). It was noted that the veteran was a farmer with a history of multiple medical problems. The veteran reported that he had experienced feet pain and sensory loss for 50 years, perhaps worse after trauma, although the examiner did not note the nature of any trauma. Nerve conduction studies were abnormal. There was mild distal sensorimotor polyneuropathy such as might be seen with diabetes, vitamin deficiencies, thyroid disease, or other metabolic or autoimmune insults. It was noted that a B-12 vitamin deficiency should be considered. There was little evidence of previous or ongoing right lumbar radiculopathy. The veteran was subsequently evaluated for gait disturbance and peripheral neuropathy. It was noted that the EMG did not show peripheral neuropathy; however, the veteran had been recently diagnosed as having diabetes. In November 2006, it was again noted that the veteran had feet pain which had been present for 57 years. The veteran related that he had herniated his back in 1967. Vascular, neurological, skin, and musculoskeletal testing was performed. The examiner opined that the pain in the veteran's feet was neurogenic in nature and was coming from his back. His calluses were due to decreased fat padding in his feet and the skin problems were related to farming in soil with heavy metals. He was started on a multivitamin. The veteran has presented lay evidence that he injured his feet during service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The veteran is competent to report that he injured his feet during service. The lay person who stated that he saw the veteran injure his feet during service is competent to state that the veteran appeared to suffer an injury to his feet. The Board finds these statements to be competent and to also be credible. However, the question remains as to whether any currently diagnosed foot disorder is related to this inservice injury. Following the alleged injury, the veteran did not report any complaints regarding his feet. He has explained that there was a lack of medical personnel to make such a report. However, he was afforded a separation examination. The Board finds that this medical report is also competent evidence. The veteran did not report any feet complaints at that time. A physical evaluation of the feet was performed. The examiner specifically determined that the feet were normal when the veteran was separated from service. Thereafter, the veteran applied for VA compensation benefits in 1955. The veteran did not report that he had any residual foot disability at that time. This is consistent with the separation examination which showed that there was no residual foot disability prior to discharge. In 1980, the veteran told his private physician that he had fractured his feet while he was in the service in the Korean War. The Board notes that a fracture is not a simple medical question. See Jandreau. Therefore, the veteran is not qualified to report that a fracture or fractures had taken place. He is qualified to state that he had injured his feet. However, either way, there were no indicated findings regarding the feet at that time nor did the veteran report any foot problems. The lack of any diagnosis regarding the feet in the years following service are consistent with the later records dated in the 1990's. Specifically, in 1991, when the veteran again applied for VA compensation benefits, he did not claim any residual foot disorder. Private medical records dated in the mid 1990's also do not reflect any bilateral foot disorder. In June 1998, the veteran initially reported having a current foot disorder. However, 1999 x-rays were negative not only for current foot disability, but for any evidence of prior fracture. May 2000 x-rays revealed subluxation of the proximal phalanx of the right 5th toe. This is the initial diagnosis of any underlying foot pathology by a medical professional. The 1980 notation only noted a history as provided by the veteran; there were no current findings or diagnosis at that time. In 2000, it was noted that the veteran had undergone surgery to remove bony spurs from his feet. The veteran told the physician that he had injured his feet during service. K.W.H., D.P.M., stated that the findings at the time of surgery showed quite a bit of bony proliferation which was probably consistent with some type of trauma to the foot. It was noted that the veteran's feet were not seen before the time of service so there was no way to tell for sure if this was exactly the cause, but it was very possible that this could have caused it. Thus, this medical professional did not provide any definitive opinion and essentially couched his opinion in terms of possibility. Such speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In December 2002, Dr. O. acknowledged that he had recorded the veteran's medical history in 1980 that he had fractured his feet during service. He stated that as far as he knew, the veteran had not told any untruths with regard to his past medical history so he had no reason to doubt that he had fractured his feet during service. The Board notes that this medical professional also did not provide a definitive opinion. The question is whether any current bilateral foot disability is related to service. That question was not addressed. In July 2003, the veteran was afforded a VA examination. The claims file was reviewed. The examiner noted that there was no inservice documentation of any foot problems or of any treatment to the feet and an October 1999 x-ray report was negative. The current assessment was chronic bilateral foot pain, undiagnosed. No current underlying foot pathology was diagnosed and the veteran was referred for further podiatry evaluation. In September 2003, the veteran was seen by VA in the podiatry department. The veteran complained of feet pain. He reported that he broken both his feet 54 years ago while in the service and his feet had hurt since that time. The impression was metatarsalgia secondary to 1st ray hypermobility bilaterally. Thus, the examiner felt that current disability was due to hypermobility. Significantly, subsequent VA records have been obtained. The veteran currently has diagnoses of multiple Morton's neuromas; bilateral metatarsalgia or generalized pain; plantar fasciitis, bilaterally; and onychomycosis of the toenails. The VA examiners have recently indicated that the pain is neurogenic and is related to a back disorder. The other feet problems are also not shown by competent medical evidence to be related to service including Morton's neuromas, hammertoe deformities, splaying of the forefoot metatarsals, plantar fasciitis, and onychomycosis. The veteran's lack of padding caused calluses and his work in farming soil resulted in skin problems. The private opinion regarding heel spurs is found to be speculative, as noted above. In short, there is no persuasive evidence that any of the veteran's current bilateral foot disabilities is due to any claimed bilateral foot injury in service. The veteran has essentially stated that he had foot pain or metatarsalgia over the years due to the alleged inservice injury. For veterans, disability compensation derives from two statutes, sections 1110 and 1131 of title 38, United States Code. Both provide for compensation, beginning with the following words; "For disability resulting from personal injury suffered or disease contracted in line of duty..." Thus, in order for a veteran to qualify for compensation under those statutes, the veteran must prove the existence of disability and that a disability has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board finds that probative and competent medical nexus evidence is absent from this case. Therefore, in sum, the veteran essentially asserts that an inservice injury resulted in residual bilateral foot problems. In support of his claim, he has submitted lay evidence that the injury occurred and that he had problems with his feet thereafter. The remainder of the record shows that the veteran has complained of foot pain since 1998, not since service. Although the veteran is competent to report that the pain was present prior to that time, the record, however, reflects medical treatment from the 1950's until his 1998 claim with no such reports of pain. The lack of any report by the veteran when he was otherwise reporting medical complaints constitutes negative evidence and therefore diminishes the credibility of his report of pain. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Further, even assuming the veteran had foot pain, the competent medical evidence does not attribute any of the currently diagnosed various foot disabilities, as previously identified, to service. Accordingly, service connection for a bilateral foot disorder is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the- doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for a bilateral foot disorder is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs