Citation Nr: 0719049 Decision Date: 06/25/07 Archive Date: 07/03/07 DOCKET NO. 04-32 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bilateral bunions. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L.B.Y., Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to July 1957. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Competent medical evidence does not show the veteran's bilateral bunions are causally related to his military service. CONCLUSION OF LAW Bilateral bunions were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in December 2003, prior to the initial adjudication of his claim in the February 2004 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claim and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfied the first three "elements" of the notice requirement. Additionally, the same VCAA letter instructed the veteran to "send us any medical reports you have" and continued by saying to the veteran, "It's your responsibility to make sure that we receive all requested records that aren't in the possession of a Federal department or agency." These statements satisfy the fourth "element" of the notice requirement, in that they informed the veteran that he could submit any and all evidence which was pertinent to his claim, and not merely that evidence requested by the RO. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In the present appeal, the veteran received Dingess notice in March 2006 and March 2007, including as it relates to the downstream disability rating and effective date elements of his claim. The Board acknowledges that the veteran has not been afforded a VA examination in conjunction with his service connection claim. As mentioned, the VCAA and implementing regulations require VA to provide a veteran with an examination or to obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (a) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (b) establishes that the veteran suffered an event, injury, or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4). Upon review, the Board has concluded that a remand for examination of the veteran and/or a medical nexus opinion is not warranted in this case. As discussed in more detail below, the service medical records do not contain any reference to a bilateral bunion disorder, and there is no medical evidence establishing that the veteran suffered from a bilateral bunion disorder in service. Thus, the Board concludes that obtaining a medical examination and nexus opinion under the circumstances presented in this case is not necessary to decide the claim and would serve no useful purpose. 38 C.F.R. § 3.159(c)(4); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In so concluding, the Board finds that the circumstances here presented differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), wherein VA erred in failing to obtain a medical nexus opinion even though evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no evidence of an in- service bilateral bunion disorder. The veteran has been provided the opportunity to present evidence pertaining to in-service incurrence, and he has not sufficiently done so. Although he now thinks that his claimed condition arose from service, he is not competent to diagnose such or render a nexus opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, the Board finds that the facts in this case are easily distinguishable from those in Charles. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records and private medical records. In a VCAA notice response dated May 2006, the veteran stated that he had no other information or evidence to give to VA to substantiate his claim. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2006). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, it finds that the development of the claim has been consistent with the provisions of the VCAA. Accordingly, the Board will proceed to a decision on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis With respect to Hickson element (1), the evidence in the claims file is inconclusive as to whether the veteran has a current bilateral bunion disability. In a January 1998 examination report, Dr. D.S. noted that the veteran's feet were "unremarkable" with no mention of bunions. However, in a photocopy of a prescription slip submitted in February 2004, Dr. D.S. noted a diagnosis of severe osteoarthritis of the first metatarsal-phlangeal (MTP) joint ("bunion"). The Board notes that the date of this prescription slip is illegible. (In the August 2004 Statement of the Case, the RO stated that the slip appeared to be dated in 2003.) But even if the Board were to presume, for the sake of argument, that the veteran currently has bilateral bunions, the service medical records show no symptoms, treatment, or diagnosis of bilateral bunions while the veteran was in service. In fact, the veteran's July 1957 separation examination indicates that the veteran's feet were clinically evaluated as normal. This would indicate that the veteran did not have a chronic bunion disability during service. The veteran recalls that he incurred bunions during service but that all of his trips to the sickbay for this condition were undocumented. See Hearing Transcript at pages 4-5 and 7-9. Consequently, the veteran has contended that military personnel negligently failed to document his complaints of bunions while in service. In response, the Board notes that the Court has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc. 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)). Unless rebutted by clear evidence to the contrary, military personnel are entitled to the benefit of this presumption. Id. In this case, the veteran has not presented any clear evidence to rebut the presumption of regularity. The service medical records show that the veteran was not seen for bunions during service. VA is not required to "prove" that this information is incorrect; as a matter of law, it is the veteran who must rebut the presumption of regularity. He has not done so. It is, therefore, presumed that the service medical records are accurate and that the veteran was not seen for bunions in service. To the extent that the veteran is now contending that he had bunions in service, his current contentions are outweighed by the negative service medical records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Board finds, therefore, that the preponderance of the probative evidence shows that the onset of the veteran's bilateral bunions did not occur during service. Therefore, Hickson element (2) has not been met. As to Hickson element (3), medical nexus, there is of record no competent medical opinion etiologically linking a current diagnosis of bilateral bunion disability (presuming for the sake of argument that such a current disability does exist) to the veteran's military service. As discussed above, the veteran is not competent to provide opinions on medical matters such as the etiology of diseases. See Espiritu; see also 38 C.F.R. § 3.159(a)(1). His statements, therefore, are not probative of a nexus between a bilateral bunion disability and military service. See also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim for bilateral bunions that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral bunions is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs