BVA9504934 DOCKET NO. 93-13 800 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lori R. Bucci, Associate Counsel INTRODUCTION The veteran served on active duty from January 1952 to December 1953. This appeal arises from a rating decision in October 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his January 1993 Notice of Disagreement, the veteran asserted a claim of entitlement to service connection for knee, hip and back disorders secondary to a bilateral foot disorder. The RO, however, failed to issue a Statement of the Case addressing these issues. In addition, the veteran appears to have raised the issue of entitlement to a permanent and total disability evaluation for pension purposes. These claims are not inextricably intertwined with the current appeal, and they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from a current bilateral foot disorder which was the result of having been issued "ill- fitting" shoes in service. Essentially, the veteran maintains that he was issued supports while stationed in Japan which aggravated a foot disorder, and that he was not physically examined at discharge in light of mistakes made on the separation examination report. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for a bilateral foot disorder is not well grounded. FINDING OF FACT The claim of entitlement to service connection for a bilateral foot disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a bilateral foot disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The majority of the veteran's service medical records were apparently lost in the fire at the National Personnel Records Center in 1973. An available December 1953 separation examination report reveals a normal clinical evaluation of the feet and a physical profile of "1" for the lower extremities. This report also noted that the veteran stuck a stick in his left eye at the age of four, that a diagnosis of post traumatic optic atrophy was warranted, as well as was a physical profile of "3" for his eyes. It is apparent that the report’s notation of 20/20 vision in the veteran’s left eye, as well as the recorded date of birth are incorrect. The record contains a June 1988 letter from Thomas W. Davis, M.D., and a June 1992 medical statement from Kevin Dorsey, M.D., concerning treatment for orthopaedic problems unrelated to the veteran's bilateral foot disorder. In a January 1993 letter, Christopher C. Moore, D.P.M., reported that he examined the veteran in December 1992 for a complaint of pain in the great toe joint of both feet. The veteran reported that the pain originally began during active service, and he attributed the pain to "ill-fitting" boots. Examination showed an enlarged first metatarsal phalangeal joint in both feet, with lateral deviation of the hallux. Range of motion was to 45 degrees of inversion, and to 20 degrees of eversion. His longitudinal and metatarsal arches were flexible. He had decrepitus on range of motion of the first metatarsal phalangeal joint, an enlargement of the mid tarsal joint of both feet, and a hyperkeratotic lesion beneath the second metatarsal head of both feet. Digits 2-4 on both feet were contracted. The diagnosis was hallux limitus with hallux abducto valgus, and hammer digit syndrome 2-4 on both feet. The doctor prescribed a temporary orthotic but thought that the veteran would be a surgical candidate in the future. At a July 1992 VA compensation examination, the veteran presented the history that in 1953, while in service, his feet bothered him. At the time, he was told that he had been issued "ill- fitting" shoes, and as a result he was given supports. The veteran could not recall if they were for his arches. In 1960, he kept having foot problems and went to a local physician who treated him with arch supports. He complained of the whole foot hurting and that the base of the metatarsals at the plantar side hurt more. The veteran asserted that as a result of his foot problems, he developed knee, hip and back problems. Subjectively, the veteran complained that his feet hurt constantly and that he could not stand for long periods of time. Objectively, he ambulated well although he claimed pain at his metatarsal bilaterally while he walked on his toes. He could walk on his heels. Specific evaluation for appearance found no edema, joint tenderness, spasms or atrophy. Functionally, the veteran could walk on the outer end and inner edge of both feet. The medial longitudinal arch measured 3/4 of an inch from the arch to the floor bilaterally, and the lateral medial longitudinal arch bilaterally was flat to the floor. There was a hallux valgus of the great toes bilaterally. X-rays of both feet showed moderate hallux valgus deformity of the toe, spread at the anterior arch. There was some flattening of the longitudinal arch. The diagnosis was history of pain in both feet. The record shows that the veteran also submitted an authorization for release of medical treatment records from the late 1960's or early 1970's by Franklin Fowler, M.D., a private physician, who fitted him with shoe supports for his feet and legs. The veteran noted, however, that Dr. Fowler moved or retired, and he had no record where he was located. The veteran submitted an authorization for release of the treatment records of R. D. Kane, M.D., pertaining to care provided from the 1960's to 1988. Analysis The Board has determined that the veteran's claim is not "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has failed to meet his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is plausible or capable of substantiation. As such, there is no duty to assist the veteran in developing his case, and his claim must be dismissed. Service connection for a bilateral foot disorder may be granted if the disorder was incurred or aggravated during the veteran's active duty service. 38 U.S.C.A. § 1110 (West 1991). When a condition is not noted to have been chronic in service, continuity of symptomatology after service is required to support a claim of entitlement to service connection. 38 C.F.R. § 3.303 (1994). In this case, the Board observes that the veteran's separation examination is negative for complaints or treatment of a bilateral foot disorder. In this regard, a review of the post service records and the veteran's statements show that after separation from service he did not seek treatment for his bilateral foot disorder until the 1960's. No competent individual or cognizable evidence, however, has linked any current bilateral foot disorder to the veteran's active duty service. Grottveit v. Brown, 5 Vet.App. 91 (1993). While the veteran is competent to offer a history of his in service and post service symptomatology, he, as a lay affiant, is not competent to medically link any current bilateral foot disorder to his active service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As a well grounded claim must be supported by cognizable evidence, Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the absence of such cognizable evidence renders this claim not well grounded. In reaching this decision the Board considered the veteran's contention that he did not think that an examination was conducted at separation because the report contained errors. The veteran pointed out that the report incorrectly listed his birthday by six days and incorrectly showed his vision as 20/20 in both eyes. The Board finds, however, that these mistakes are simply clerical errors. Indeed, the Board draws attention to the second page of the separation examination report at block 76 titled physical profile wherein the examiner correctly assigned a physical profile of "3" for "E" or "eyes". Accordingly, because the number "1" is listed in the remaining categories, including the category "L" or "lower extremities," the Board finds that there is no evidence of a foot disorder at separation. The Board also acknowledges that it appears that the RO did not attempt to obtain medical treatment records from Doctors Fowler and Kane. The veteran’s claim, however, is not well grounded. Hence, there is no duty to assist. Murphy v. Derwinski, 1 Vet.App. 78 (1991). Assuming arguendo, however, that such a duty is present here, the Board finds that there is no duty to secure the records from Dr. Fowler as the veteran has indicated that Dr. Fowler has moved, and that he is unaware of the doctor’s current location. Similarly, there is no duty to secure the records from Dr. Kane as this health care provider did not provide any treatment prior to the 1960’s, and there is no indication that Dr. Kane’s records would make a difference in the ultimate result in light of the absence of inservice symptomatology. Simply put, even if there were a duty to assist the veteran in this case, which there is not, such a duty would not be a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim. Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). Although the Board considered and denied this appeal on a ground different from that of the RO, which denied the claim on the merits, the veteran is not prejudiced by this decision. This is because in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). ORDER The claim for service connection for a bilateral foot disorder is dismissed. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. An individual having a numerical designation of ‘1’ under all factors is consid medical fitness and, consequently is medically fit for any military assignment." Vet.App. 456, 457 (1992).