Citation Nr: 1736637	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-19 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a left foot disability.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1987 to February 1991.

The matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the undersigned at a hearing held in February 2014.  The claim was previously remanded in September 2014, December 2015, and June 2016 for development.


FINDING OF FACT

The Veteran's left foot disability did not have its onset in service and is not otherwise related to the Veteran's active military service.


CONCLUSION OF LAW

The criteria for service connection for a left foot disability are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA has met its duty to notify in the February 2011 letter.  Thus, adjudication of the claim at this time is warranted. 

The Board notes that the matter has been remanded in September 2014, December 2015, and June 2016, in pertinent part, to obtain a peripheral neuropathy examination conducted in February 2013 that was referenced in the February 2013 VA examination.  A review of the record shows that no such peripheral examination has been associated with the claims file despite attempts to locate the record.  However, in a September 8, 2016 correspondence, the February 2013 VA examiner found that the claimed neuropathy examination was not conducted and that further attempts at obtaining said record would be futile, thereby indicating such reference to the peripheral neuropathy examination was a mistake and that there is no such record.  As a result, the Board finds there is no prejudice in moving forward with the appeal as all relevant evidence has been obtained with regard to the Veteran's claim being decided herein, and the duty to assist requirements have been satisfied.  Service treatment records (STRs) and post-service VA treatment records are associated with the claims file.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. 

Pursuant to the most recent June 2016 Board remand, another addendum opinion was obtained to determine whether it was at least as likely as not that any currently diagnosed neurological disability was incurred as a result of disease, injury, or treatment in service, including but not limited to the in-service injury to the dorsum of the Veteran's left foot and subsequent treatment.  An addendum opinion was conducted in September 2016 and the Board finds that the opinion, when taken in conjunction with the February 2013, January 2015, August 2015, and January 2016 VA examinations, is adequate because the VA examiner issued a medical opinion based on a thorough review of claims file, consideration of the solicitation of history and symptomatology from the Veteran, and review of the numerous detailed objective examinations of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board acknowledges that the February 2013 and August 2015 VA examinations were considered inadequate by prior Board remands.  However, the Board notes that it was specifically the examinations' opinions that were deemed inadequate due to the examiners' failure to consider the Veteran's reports of continued left foot symptomatology since service in their rationale, and not that the objective portion of the examinations were inadequate.  As such, the Board considers the examinations' objective findings and the Veteran's reports during the examinations still applicable and has probative value to the matter at hand.   

The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.


Service Connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a), including arthritis.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d at 1377; see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Factual Background

In this matter, the Veteran asserts that he has a current left foot disability that is related to his left foot injury during active service and subsequent surgical treatment for the left foot condition.  

A review of the service treatment records (STRs) verifies an in-service injury to the left foot.  Specifically, a July 16, 1990 STR noted the Veteran had been rushing down the stairs when his left foot was caught in the stairs.  He bruised his plantar flexion of the left foot and also tore some of the skin on his left foot.  The note indicated there was swelling and ecchymosis on the top of the foot.  The note indicated it was very tender on the top of the foot and laterally along the 5th metatarsal, and that there was sensory loss on the 4th and 5th toes with decreased movement secondary to pain in those toes.  The note indicated x-rays were negative and assessed acute left foot injury.  On a follow up STR note on July 21, 1990, the record indicated continued pain to site and examination revealed abrasion to dorsum of the left foot that was mildly ulcerated with purulent drainage at two sites.  The area around the wound was noted as swollen and erythematous, with decreased range of motion, tender with dorsiflexion (passive), and plantar flexion of toes three and four.  The record assessed severe sprain to left foot and cellulitis.  Another follow up STR on July 23, 1990 noted continued tenderness and swelling with some numbness to the left foot injury site.  The record noted mild to moderate swelling of foot and the wound to anterior aspect remained with pink to redness color around the edge.  The record noted the site appeared to be healing but also noted mild to moderate tenderness to palpitation and limited range of motion to toes and ankle.  The record noted the Veteran was unable to put his complete body weight on the foot while ambulating.  The record assessed healing wound and resolving infection.   The infection resulted in cellulitis and a July 25, 1990 STR noted the Veteran had been seen five days ago where the Veteran's cellulitis was localized to the top of the left foot.  The record noted the Veteran's left foot had worsened as the whole foot was swollen and had edema to ankle.  The record assessed cellulitis.  

An August 1990 discharge note in the STRs indicated the Veteran was admitted to the hospital for further treatment of his left foot. The record noted the Veteran was admitted July 25, 1990 and discharged August 30, 1990.  The record noted the following procedures were completed during treatment: incision and debridement of the necrotic skin to the dorsum of the left foot, debridement of the ulcer to the left foot, and split thickness skin graft.  The discharge diagnosis was blunt trauma to the dorsum of left foot resulting in formation of a subcutaneous hematoma.  There was subsequent infection and cellulitis of the hematoma requiring debridement and there was placement of split thickness skin graft over the full thickness skin loss to the dorsum of the left foot.  The record noted satisfactory discharge condition.  An October 1990 STR noted a follow up on the skin graft on the left foot.  The record noted the Veteran had returned to full duty and was on his feet more wearing boots.  The record noted there was increased edema but there was no fever, chills, drainage, or pain.  The Veteran had reported continued edema, and "pn." to the left foot.  The record noted the skin graft looked excellent with no signs of infection and noted there was edema secondary to decreased motion in the lower extremity.  On the February 1991 separation examination, the examiner found the Veteran's feet, lower extremities, and "neurologic" was normal.  Also at the February 1991 separation examination, the Veteran denied foot trouble, denied neuritis, denied bone, joint, or other deformity, and denied swollen or painful joints.  The skin graft of the left foot was acknowledged in the separation examination.  

Post-service records show the Veteran first complaint regarding his foot was in his November 2010 claim for entitlement of service connection of his left foot.  

A December 2011 VA treatment record noted the Veteran's surgical history included a skin graft on his foot.

A July 2012 VA treatment record noted that about two years ago the Veteran had seen a Veteran Service Officer and received an appointment to see someone in Winston-Salem about his foot.  

The Veteran was provided a VA examination in February 2013.  During examination, the Veteran reported left foot pain, paresthesia, and numbness since injury in service in 1990.  The Veteran complained of intermittent numbness and paresthesia since left foot status post subcutaneous hematoma debridement and skin graft in 1990 and that his symptoms had improved over time.  The Veteran also stated he did not seek medical attention for his symptoms due to the cost of healthcare and because he had attributed the symptoms to tight fitting steel toe shoes.  The examiner noted the following diagnoses in the left foot: hallux valgus, resolved left foot sprain with cellulitis status post subcutaneous hematoma debridement and skin graft, and resolved left tinea pedis.  The examiner also noted a mild deviation of the first toe consistent with hallux valgus deformity with tenderness.  The examiner noted an asymptomatic residual scar on the dorsum of the left foot status post subcutaneous hematoma debridement and skin graft.  The Veteran reported the scar was not painful.  After examination, the examiner opined that the Veteran's left foot condition of mild hallux valgus was less likely as not a continuation of the left foot condition shown in service.  The examiner's rationale was that the service related left foot sprain with subsequent cellulitis status post subcutaneous hematoma debridement and skin graft was an acute and self-limiting injury as evidenced by the normal separation examination on February 13, 1991.  The examiner further noted that there was no evidence of continuity of care for the Veteran's left foot condition in the years proximal to military service.  As such, the examiner reiterated that the mild hallux valgus noted on examination was not related to the left foot sprain with cellulitis status post subcutaneous hematoma.

At the February 2014 Board hearing, the Veteran reported that he had an in-service injury to his left foot in 1990 while he was in Alaska.  He reported the only thing that was done when he returned to his ship base was that it was cleaned and wrapped, and he was placed on crutches and on bed rest.  When he was enroute to deployment, he was airlifted to a Navy facility in the Aleutian Islands where he was hospitalized for approximately six to eight weeks where he had surgery once or twice.  He indicated there was a case of gangrene that occurred from the time being on the ship until he reached the hospital.  The Veteran reported that he was not subsequently treated again for his left foot condition while he was on active duty, nor one year after he was discharged from the military.  The Veteran stated that he did not receive treatment for his left foot but that his foot did not get better.  The Veteran reported that his left foot condition continued to bother him.  He indicated he had numbness and tingling but that he was able to walk.  He explained the lack of treatment post-service on being young and that he did not understand where to go.  He stated he had the same problem in his foot since his injury in service.  The Veteran denied that any physician or medical professional had linked his current left foot problems to service.  

Pursuant to a September 2014 Board remand, the Veteran was provided another VA examination in January 2015.  The September 2014 Board remand, in pertinent part, found the February 2013 VA examination inadequate since the examiner failed to address the Veteran's reported complaints of pain, numbness, and paresthesia in the left foot since service in the opinion's rationale.  During the January 2015 VA examination, the examiner noted the Veteran's foot injury during military service that resulted in avulsion of skin over the dorsum of the left foot and infection that required prolonged hospitalization and grafting over the avulsed wound in 1990.  The examiner noted the Veteran had some non-incapacitating pain over the two superficial injuries to the dorsum of the left foot with some non-incapacitating and mild residual pain over the second and third metatarsal joints with pressure.  The examiner noted the Veteran was able to wear normal shoes and had worked as an outdoor laborer until about six months prior to the examination date.  The examiner noted the Veteran's unemployment was not related to the remote healed foot injury of 1990.  After examination, the examiner opined that the Veteran's left foot condition was less likely than not incurred in or caused by the claimed in-service injury.  The examiner's rationale was that there was no significant disability involving the previous injury to skin avulsion on the dorsum of the left foot that was now completely healed.  The examiner noted there was no tenderness on examination of the area.  

The Veteran was provided another VA examination in August 2015 for the Veteran's complaints of numbness and tingling in the left foot.  The Veteran reported he had intermittent numbness and tingling to the dorsum of the left foot since his in-service treatment for cellulitis.  The examiner noted on objective testing during examination that there was mild numbness in the left lower extremity.  The examiner noted the distribution of the complaint of numbness and tingling was in the deep peroneal nerve and that sensory examination, to include the left foot and toes, was normal during examination.  The examiner also noted the Veteran's scar on the left foot and noted the scar was not painful, unstable, or was a total area greater than 39 square centimeters.  After examination, the examiner opined that the Veteran's peripheral nerve condition in the left foot was not at least as likely as not due to the left foot cellulitis during active service.  The examiner's rationale was that the Veteran's complaint was more consistent with compressive pathology as evidenced by his statement that changing shoes alleviated his symptoms.  The examiner also noted the Veteran's scar was superficial and opined that it would not lead to said compression.  

The December 2015 Board remanded, in pertinent part, for an addendum opinion in which the examiner would consider the Veteran's reports of continuity of symptoms since service and whether any peripheral nerve condition was otherwise related to an in-service injury event, separate from the 1990 left foot injury.  

The Veteran was provided another examination in January 2016.  During examination, the examiner included a detailed history.  Specifically, the examiner noted the Veteran's prior January 2015 VA examination indicated the Veteran had a soft tissue injury which required skin grafting and had healed with no residuals.  The Veteran was noted to have tenderness to the second and third metatarsophalangeal joints not related to the in-service injury.  The examiner noted there was no diagnosis provided for the complaint except for inflammatory conditions.  The examiner noted a review of the STRs showed the Veteran underwent debridement for necrotic ulcer with cellulitis after trauma in 1990 and had a skin graft.  The Veteran was noted to have a six to eight centimeter cellulitis to dorsum of the left foot and was noted to have swelling that extended to the ankle.  The examiner noted a July 21, 1990 STR that indicated the Veteran had pain with dorsiflexion and plantar flexion of the third and fourth toes and noted the February 13, 1991 separation physical examination was silent for foot problems.  The Veteran reported that his foot was smashed while carrying groceries up a staircase and that he almost fell backward when his foot became lodged in the step.  The Veteran stated his foot was bruised afterwards and there was a tear in the skin with some bleeding that later became infected.  The Veteran complained of frequent tingling and numbness in the left foot and that the pain on his dorsum and sole of the left foot was aggravated by prolonged weightbearing.  The Veteran stated this had been occurring since the in-service injury and denied progression of symptoms.  The examiner noted the Veteran had a two by two centimeter round flat non-tender scar on the dorsum of his midfoot and that there was another non-tender adjacent scar that was 0.7 by 0.7 centimeters round flat.  The examiner noted the scars on the Veteran's left foot were not painful and were stable, with a total area less than 39 square centimeters.  After examination, the examiner opined that the Veteran's left foot condition was less likely than not incurred in or caused by the claimed in-service injury.  The examiner's rationale was that the Veteran's foot pain was most likely due to a Morton's neuroma and that his in-service infection had healed without any evidence of long-term sequelae.  The examiner noted the condition was less likely as due to or related to superficial foot infection shown during active duty.  

A June 2016 Board remanded, in pertinent part, for an addendum opinion regarding the Veteran's left foot neurological disability.  Pursuant to the Board remand, an addendum opinion was obtained in September 2016.  The September 2016 VA examiner opined that the Veteran's left foot condition was not the type that would cause a compressive neuropathy.  The examiner also noted the January 2016 VA examiner's finding that the Veteran's complaints were not due to the foot infection he had in service.  The examiner found there was nothing in the literature to support the claim and opined that regardless of lay statements, the fact was that there was no anatomical or physiologic relationship as to causality that the infection in service could or would cause a neuropathy.  

Analysis

The competent evidence of record demonstrates the absence of nexus between the currently diagnosed left foot condition and the Veteran's active duty service.  The Board acknowledges, as noted above, that the prior examination opinions in February 2013 and August 2015 have been considered inadequate by the Board for failure to consider the Veteran's reports of continued left foot symptomatology since active service.  However, when taking all VA examinations of record in conjunction, to include the VA examinations and opinions in January 2015, January 2016, and September 2016, the Board finds that there is a clear consensus and significant probative weight against a nexus between the Veteran's current left foot condition and any in-service injury.  The Board further notes that the VA examiners have continued to find that there was no residual or chronic disability demonstrated based on the lack of foot complaints on the separation examination in February 1991, that the etiology of the current left foot condition was not related to the in-service injury, and the lack of objective evidence of foot related complaints post-service for many years.  The January 2015, January 2016, and September 2016 VA examiners considered the Veteran's reports of continued symptomatology since active service in their rationale.  Despite the Veteran's reports of continued symptomatology, the examiners found that the etiology of the Veteran's current left foot condition was different from that of the Veteran's in-service injury based on a full review of the record, to include the STRs, as well as numerous detailed objective examinations of the Veteran's left foot condition.  Specifically, the January 2015 VA examiner opined that the previous in-service injury to the skin avulsion of the dorsum of the left foot was completely healed and there was no tenderness on examination of the area; the January 2016 VA examiner opined that the Veteran's foot pain was most likely due to a Morton's neuroma, a condition not found during active service; and the September 2016 VA examiner opined that there was no anatomical or physiologic relationship as to causality that the infection in service could or would cause a neuropathy in the left foot.  As such, the Board ultimately places significant weight on the findings of the January 2015, January 2016, and September 2016 VA examiners.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").

Moreover, the Veteran has not submitted any medical evidence to contradict the findings set forth in the VA opinions.  Pursuant to 38 U.S.C.A. § 5107(a), it is the claimant's responsibility to "present and support a claim for benefits under laws administered by the Secretary."  See Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting the claimant's general evidentiary burden to establish his claim); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009) (interpreting section 5107 and stating that a claimant has the burden of presenting evidence supporting his claim, albeit with the statutorily mandated assistance of VA).

Based on a review of the evidence, the Board finds that service connection for a left foot disability is not warranted.  In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus.  As a lay person, the Veteran is competent to report observable symptoms.  See Washington v. Nicholson, 21 Vet. App. 191, 195   (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau, 492 F.3d at 1377 n.4.  The general principle that trauma may lead to chronic orthopedic disability is commonly known and, therefore, the Veteran's claim that he has a chronic left foot disability related to his in-service injury has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.

Crucially, the evidence of record indicates that the Veteran's in-service left foot injury resolved.  Notably, there were no documented complaints of left foot symptoms until almost two decades after separation from active service.  Moreover, a post-service left foot disability was not diagnosed until February 2013.  The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan, supra.  Additionally, the Board recognizes that as with 'chronic disease' shown as such in service (or within the presumptive period under § 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.  38 C.F.R. § 3.303(b).  However, the Board ultimately observes that the contentions of the Veteran regarding chronic left foot symptomatology dating from his initial in-service injury are less probative than the findings of the January 2015, January 2016, and September 2016 VA examiners who considered these lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. 

Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a left foot disability.  Accordingly, the preponderance of the evidence is against this service connection claim.  See 38 U.S.C.A § 5107.


ORDER

Entitlement to service connection for a left foot disability is denied.


____________________________________________
THOMAS H. O'SHAY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s