Citation Nr: 1754193
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 09-32 915 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
Entitlement to service connection for a degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes (claimed as bilateral foot disability).
Veteran represented by: New Hampshire State Office of Veterans Services
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. Timbers, Associate Counsel
The Veteran had active duty service from 1969 to September 1970.
This appeal comes to the Board of Veterans’ Appeals (“Board”) from a July 2010 rating decision by the Department of Veterans Affairs (“VA”) Regional Office (“RO”) in Manchester, New Hampshire (hereinafter Agency of Original Jurisdiction (“AOJ”)).
In June 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing, held at the RO. A transcript of this hearing has been reviewed and associated with the Veteran’s claims file.
The Veteran’s appeal has previously been before the Board. Most recently, in August 2015, the Board remanded the Veteran’s claim for entitlement to service connection for a bilateral foot disability to the AOJ for further development. Specifically, the Board directed the AOJ to a VA examination and medical opinion which addressed the etiology of the Veteran’s bilateral foot disability. Upon review of the evidentiary record, the Board finds such development was completed and that the matter has been properly returned to the Board for further appellate jurisdiction. See Stegall v. West, 11 Vet. App. 268 (1998).
The Board further notes that the Veteran has elected to change representatives. See September 2017 VA 21-22. The Board accepts this request, as it is within the 90 days of receipt of the appeal at the Board. 38 C.F.R. § 20.1304(b). Usually, under these circumstances, the Board would delay a final decision to allow the new representative time to review the claim on appeal. However, as will be explained in greater detail below, this decision represents a full grant of the benefits sought on appeal. Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran.
FINDING OF FACT
The Veteran’s current degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes (claimed as bilateral foot disability) began during, or was otherwise caused by, his active duty service.
CONCLUSION OF LAW
The criteria for service connection for degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(b), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before assessing the merits of the appeal, VA’s duties under the Veterans Claims Assistance Act (“VCAA”) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).
With respect to the Veteran’s application for entitlement to service connection for a bilateral foot disability, the Board notes that VA notified the Veteran, in correspondence December 2009 of the information and evidence needed to substantiate and complete his claim including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the December 2009 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board also finds that VA has complied with the VCAA’s duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to testify before the Board. It appears that all known and available records relevant to the issues discussed herein have been obtained and associated with the Veteran’s claims file; the Veteran has not contended otherwise.
The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge (“VLJ”) at a Travel Board hearing, held at the RO in June 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2013hearing, the VLJ noted the basis of the prior determination and explained the elements of the claims that were lacking to substantiate the Veteran’s claims for benefits. The VLJ specifically noted the issues on appeal. The Veteran was assisted this hearing by his former representative, Disabled American Veterans. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran’s hearing constitutes harmless error.
Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .”). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.
Lastly, the Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
General Laws and Regulations Governing Entitlement to Service Connection:
The Veteran seeks entitlement to service connection for a bilateral foot disability. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).
Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015).
As applied to the Veteran’s instant appeal, the Board notes that arthritis is an enumerated “chronic” disability under 38 C.F.R. § 3.309(a). As such, the theory of continuity of symptomatology remains valid in adjudicating the Veteran’s claim for entitlement to service connection for a bilateral foot disability, to include arthritis. .
Based upon a review of the Veteran’s military personnel records, and statements made to VA, the Board finds the Veteran served in a combat role during his active duty service. Therefore, the provision of 38 U.S.C.A. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).
The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).
When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
That being the relevant, generalized, law applicable to the Veteran’s claim, the Board finds the Veteran is entitled to service connection for his bilateral foot disability. Specifically, the Board finds the competent and credible evidence of record, which includes both medical evidence and the Veteran’s lay assertions, documents probative evidence of chronic symptomatology since his separation from active military service. See Savage v. Gober, 10 Vet. App. 488 (1997).
As an initial matter, the Board observes the Veteran has met the first prong of entitlement to service connection, the existence of a current disability. A review of the Veteran’s medical records shows he has a current diagnosis for degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes. Therefore, the Board finds the Veteran has satisfied the first element of service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
Second, a review of the Veteran’s service medical records show he was treated for complaints of bilateral foot pain on numerous occasions. For example, in November 1969, the Veteran was treated for complaints of blisters on his bilateral feet. Thereafter, in December 1969, the Veteran sought treatment again for complaints of swollen feet, with open sores/ blisters. Following a physical examination of the Veteran’s feet, he was placed on “no duty” for 48 hours, and directed to soak his feet. These service medical records additionally appear to instruct the Veteran to obtain a new pair of boots.
Following these early reports and treatment for foot pain, the Veteran was sent to Vietnam to continue his active duty service. In statements to the Board, the Veteran has credibly reported that he continued to have bilateral foot pain during his active duty service in Vietnam. Furthermore, and as noted above, the Veteran is in receipt of the Combat Action Ribbon and the Navy Achievement Medal, both indicators that the Veteran fought in combat while in Vietnam. The Veteran’s service personnel records include a note from his commanding officer recommending the Veteran for the Navy Achievement Medal, and described the Veteran’s bravery and valor while fighting in combat. Based on these facts, and the Veteran’s credible reports of continuous foot trouble, the Board finds it reasonable to conclude that the Veteran continued to experience bilateral foot pain and blisters throughout his active duty service. See 38 U.S.C.A. § 1154(b); see also Caluza v. Brown, 7 Vet App. 498 (1995).
As to the third prong of service-connection, the existence of a nexus, the Board acknowledges there is a mix of positive and negative medical opinions. First, as part of the Board’s July 2016 remand, the Veteran was afforded a VA medical examination. During this examination, dated October 2016, the Veteran was noted to have diagnosed disabilities of bilateral pes planus, bilateral hammer toes, and bilateral hallux rigidus. Examination of the Veteran’s bilateral feet were notable for significant tenderness and deformities bilaterally. The examiner observed the Veteran experienced pain with weight bearing, instability of station, and difficulty walking, and standing.
Based upon this physical examination, and a review of the Veteran’s medical records, the examiner concluded that “it is difficult to associate the current bilateral foot” disabilities with the Veteran’s military service. In support of this conclusion, the examiner explained that there was no mention or report of foot trouble during the Veteran’s February 1969 entrance examination or the September 1970 separation examination. The examiner additionally, through incorrectly, reported that the Veteran did not seek treatment for any foot complaint, other than a rash on the ankle, during his military service. The examiner further cited to the lack of medical treatment for the bilateral foot disabilities in the years immediately following the Veteran’s separation from military service.
Overall, the Board finds this October 2016 medical opinion to be entitled to less probative value. Significantly, the Board finds that the examiner’s conclusion regarding the lack of any in-service medical treatment is false. As noted above, the Veteran sought treatment for complaints of bilateral foot pain on numerous occasions throughout his active duty service. Furthermore, as the Veteran served in combat, the Board finds his statements as to continuous symptoms during service to be credible. Therefore, as the examiner incorrectly found the Veteran was not treated for bilateral foot pain during his active duty service, his medical opinion is entitled to little probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (an opinion based upon an inaccurate factual premise has no probative value).
Furthermore, the Board finds the examiner’s reliance on the lack of a notation for bilateral foot pain during the September 1970 separation examination to be problematic. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007)(Where Court explained VA was in error when the sole premise for the examiner’s conclusions was the lack of notation or treatment of the claimed disability in service). Similarly, the examiner’s reliance on a lack of medical records from the time period immediately following the Veteran’s separation from active duty service is problematic. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”).
Aside from this October 2016 medical opinion, the Board observes there are two additional VA examinations and medical opinions which are equally problematic. For example, during the December 2013 VA examination, the examiner failed to provide a statement concerning the etiology of the Veteran’s diagnosed bilateral first metatarsal degenerative joint disease. As for the Veteran’s bilateral hammer toes, the examiner reasoned this was less likely than not related to the Veteran’s active duty service because the condition had only recently been diagnosed as symptomatic. This conclusion is entitled to little probative value because it overlooks the Veteran’s credible lay statements of continuous symptoms. Furthermore, although the examiner cited to the Veteran’s in-service treatment for bilateral foot pain and blisters, the examiner finds this condition resolved with treatment and therefore did not cause or contribute to the Veteran’s current disability. However, the Board notes that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007).
The Veteran underwent another VA foot examination in November 2015, after which the examiner concurred with the negative etiological opinions of the previous VA examiners. No additional support or rationale was provided for this negative nexus opinion. As such, the Board finds this medical opinion is entitled to no weight.
As for the favorable evidence supporting the existence of a nexus, the Board acknowledges that no medical provider has opined the Veteran’s bilateral foot disability is a result of his active duty service. The Veteran has, however, submitted numerous statements where he cited to his physician as establishing the positive nexus. For example, in a letter dated August 2012, the Veteran reported that his physician has repeatedly told him that tight fitting boots, such as the boots the Veteran wore during service, cause subsequent foot disabilities such as the development of hammer toes. As for the Veteran’s lay reports, he has consistently and repeatedly stated that his symptoms of bilateral foot pain have been chronic and continuous since his separation from active duty service. For example, the Veteran asserted, at his March 2008 VA examination, and in lay statements submitted in November 2008 and December 2009, that his foot problems began in service and have persisted since separation.
The evidentiary record additionally contains reports from the Veteran’s friends and employers, who have described the Veteran as having experienced continuous foot pain and trouble since his separation from active duty service. For example, the Veteran’s former employer submitted a written statement in September 2010 stating that he has known the Veteran for 30 years, and has always known the Veteran to have experienced trouble with his bilateral feet during those 30 years.
As for the medical evidence, the Board notes that the Veteran has been treated at the Manchester VAMC for complaints of bilateral foot pain and hammer toes. A review of these treatment records reveals the Veteran has reported the same, chronic, symptoms for years, including bilateral foot pain, hammer toes, pain with walking, and other symptoms. These records further contain a June 2010 x-ray diagnosing degenerative joint disease of the Veteran’s bilateral foot. This radiograph was notable for the degree of osteoarthritic changes observed, including “prolific bony changes,” flexion deformities, and large spurts of the calcaneus at the insertion of plantar aponeurosis and the Achilles tendon.
In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) (“decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C.A. § 5107(b) (VA “shall consider all information and lay and medical evidence of record in a case”); 38 C.F.R. § 3.303(a) (service connection claims “must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence”). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation).
The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995).
As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has consistently and credibly asserted that his foot trouble began during his active duty service and has continued on a chronic and regular basis since the time of his separation. Based on the consistency of his statements the Board find them to be inherently credible. The Board also finds these credible reports of continuous symptoms is entitled to probative value, even in the absence of contemporaneous medical records. Furthermore, the Board finds that the Veteran is competent to report lay reports of continuous symptoms as the symptoms are within his realm of knowledge and expertise. Moreover, the Board finds these lay reports are made all the more credible by the June 2010 diagnosis, via x-ray, of degenerative joint disease of the bilateral feet.
In conclusion, and after consideration of the above evidence, the Board finds the Veteran experienced persistent bilateral foot pain and blistering during his active duty service, which continued following his separation from military service as chronic as chronic pain and difficulty standing/walking. Thereafter, the Veteran was diagnosed with degenerative joint disease of the bilateral feet. Throughout the period on appeal, the Veteran has provided consistent lay statements of continuous symptoms, which the Board finds credible and corroborated by the June 2010 x-ray diagnosis for the current disability of bilateral foot osteoarthritis. In addition VA regulations provide that reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 3.102. Therefore, the Board finds entitlement to service connection for degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes is warranted.
Entitlement to service connection for degenerative joint disease of the first metatarsophalangeales, bilaterally, and for flexion contractures of bilateral second through fifth toes is granted.
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs