Citation Nr: 1340063 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-06 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral foot disorders, to include bilateral hallux valgus, hammertoes of the second toe bilaterally, and chronic bilateral foot strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a bilateral foot disorder. The Veteran timely appealed that decision. This case was initially before the Board in June 2012 and then again in May 2013 and August 2013, when the Board remanded the bilateral foot claim for additional development. That development having been completed, the case has been returned to the Board for further appellate review at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral hallux valgus, hammertoes of the second toe bilaterally, and chronic bilateral foot strain; the Veteran's bilateral feet do not have any arthritic conditions diagnosed throughout the appeal period. 2. The Veteran injured his feet during service when a five-inch heavy gun shell fell on his feet; his 1946 separation examination of his feet, however, is shown to be normal. 3. The evidence of record does not demonstrate that the Veteran's bilateral foot disorders are related to military service, to include the shell falling on his foot during service. CONCLUSION OF LAW The criteria establishing service connection for bilateral foot disorders, including bilateral hallux valgus, hammertoes of the second toe bilaterally, and chronic bilateral foot strain, have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2010 that provided information as to what evidence was required to substantiate the claim of service connection for his bilateral foot disorder claim herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board acknowledges that this claim was the subject of an August 2013 Board remand, which included obtaining any outstanding VA treatment records and an addendum to the May 2013 examiner's opinion. The Board notes that the Veteran's VA treatment records through October 2013 have been associated with the claims file. Additionally, the RO/AMC obtained an addendum opinion from the May 2013 examiner in September 2013. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). 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")). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). On appeal, the Board notes that the Veteran has asserted that during his period of military service he served aboard the U.S.S. Harry Bauer during combat, and that during that time he dropped a 5-inch shell on his feet. The Veteran has submitted a statement from his friend, K.B.C., who served with the Veteran at that time on the same vessel and witnessed shell fall on the Veteran's feet during a period of time when they were firing the ship's guns in combat with the enemy. The Board notes that the Veteran has service during World War II from July 1942 to January 1946, and his service personnel records document that he did serve aboard the U.S.S. Harry Bauer during his period of service. The Veteran's service treatment records, of which there are relatively few, do not demonstrate any foot injuries during military service. In fact, the Veteran's enlistment and separation examinations list the Veteran's feet as normal. However, in light of the Veteran's combat service and K.B.C.'s statement, by resolving doubt in his favor, the Board finds that the evidence of record documents that the Veteran injured his feet during combat when a 5-inch gun shell fell on his feet. See 38 U.S.C.A. § 1154(b) (West 2002). Thus, the Board initially concedes the second element of service connection-in-service injury-is met in this case. With respect to the first element of service connection, the Board notes that the Veteran was diagnosed with bilateral hallux valgus, hammertoe of the second toe bilaterally, and chronic bilateral foot strain in a July 2012 VA examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). The Board has additionally reviewed the Veteran's extensive amount of VA and private treatment records, most of which are from Macomb Memorial and Henry Ford Memorial Hospitals in Michigan, as well Oakhurst, an assisted living home. Those records do not demonstrate any particularized treatment for any bilateral foot disorder or condition. The Board does note that the Veteran is shown in those records to have a gait disorder/abnormality, though that is related to his lumbar spine arthritis and bilateral knee replacements in some records or his seizure disorder and 2009 stroke in others. The Veteran is additionally shown to have generalized osteoarthritis, unspecified osteoarthrosis and other degenerative conditions, including degenerative joint disease, throughout his private and VA treatment records. The Board, however, notes that those conditions are never associated with any bilateral foot complaints, and the record is rife with evidence which demonstrates that since 1984 the Veteran has been diagnosed with arthritic conditions in his neck, lumbar spine, and bilateral knees. The Board specifically notes that there is no x-ray evidence establishing that the Veteran's bilateral feet have any arthritic condition. In light of the above noted records and the review of same, the Board finds that the only currently diagnosed bilateral foot disorders are those noted in the July 2012 VA examination report. The Board notes that there is no evidence to support that any of the noted osteoarthritis or other degenerative conditions noted in the VA and private treatment records pertain to the Veteran's bilateral feet, but rather describe arthritic conditions, most notably his cervical and lumbar spines and bilateral knees. In short, the Board finds that the relevant current diagnoses for the Veteran's claimed bilateral foot disorders are: bilateral hallux valgus, bilateral hammertoes of the second toe and chronic bilateral foot strain. See McClain, supra. Thus, the Board additionally concedes that the first element of service connection has been met in this case, with respect to those noted diagnosed bilateral foot disorders. Thus, this case essentially turns on the issue of a nexus between service and those currently-diagnosed foot disorders. The Board finds that such is not shown by the evidence of record in this case. First, as discussed above, the Veteran's currently-diagnosed bilateral foot disorders do not include any arthritic condition. Accordingly, service connection cannot be granted in this case on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Nor does the Veteran's lay evidence with regards to continuity of symptomatology since service abrogate the necessity of a nexus in this case, as hallux valgus, hammertoes and chronic foot strains are not listed under 38 C.F.R. § 3.309(a). See 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, supra. However, the Board does acknowledge that the Veteran's lay evidence with respect to continuity of symptomatology is relevant in this case, and is competent and credible. Unfortunately, the Board gives that evidence little probative value, particularly given the Veteran's noted dementia and other psychiatric conditions making it difficult for him to be a particularly reliable historian. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency, with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). Of particular note, the Board points to a private treatment record from September 1984 from the University of Texas, which formed the basis of the Veteran's initial VA claim for benefits for a nonservice-connected pension in 1984. That treatment record documented extensive arthritic conditions in the lumbar, thoracic and cervical spines, as well as adhesive capsulitis of the right shoulder and melanoma status post a radical neck dissection. Specifically, the Board notes that there are no complaints of any bilateral foot disorders at that time, and in fact, the physical examination noted that the Veteran did not have any difficulty ambulating at that time. Moreover, the Board notes that the Veteran's VA and private treatment records are basically devoid of any bilateral foot problems throughout the records, which weighs against the Veteran's claims with respect to continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Insofar as the Veteran's lay statements and those of his spouse and other family members and friends serve as nexus opinions which medically relate the Veteran's current bilateral foot conditions to his conceded in-service injury, the Board notes that those opinions are not considered competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board, however, does note that the Veteran's private home care provider, T.B., stated in a March 2013 hand-written letter that "due to a 5-inch shell falling on his feet during serving [sic], he still has much trouble with walking (even with walker) and moving around at all. His foot sort of slings to the side." The Board concedes that such evidence is potentially competent in this case, as the Board is unaware of the exact medical training and expertise of Ms. T.F. However, in resolving doubt in the Veteran's favor with respect to the competency of the home care aide in this case, the Board finds that Ms. T.F.'s March 2013 statement is essentially non-probative. The Board notes that she essentially relates the Veteran's ability to walk to his injury in service, which is directly contradictory to the vast amount of other evidence in the record from known medical professionals which link that gait abnormality/ disorder and/or walking difficulty to any number of post-service intervening factors ranging from the development of arthritic conditions in his knees and back to his seizure disorder and post-stroke residuals. Also, she does not address the noted hallux valgus, hammertoes or chronic foot strain at all in her opinion, which are the three noted currently-diagnosed bilateral foot disorders. More importantly, Ms. T.F. does not engage in any type of analysis of the evidence of record, including the separation document from 1946 which demonstrates normal feet, over 60 years of evidence lacking any complaints or treatment for any bilateral foot disorders other than the Veteran's statements which the Board has given little probative value to as discussed above, and the intervening events noted above, such as his 2009 stroke which would potentially explain why the Veteran's "foot slings to the side." Ms. T.F.'s March 2013 nexus opinion is essentially a recitation of the Veteran's oral medical history-which the Board found to be of little probative value in light of his psychiatric state as noted above-and the probative value of her statement is essentially the same probative value as the Veteran's noted lay evidence above. The Board assigns little probative weigh to her statement, even after conceding that she was competent to render a medical opinion in this case at all. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board not prefer one medical opinion over another solely based on claims file review or absence thereof; most of the probative value of a medical opinion comes from the reasoning). This leaves the Board with the July 2012 VA examiner's opinion and January 2013 addendum, and the May 2013 VA examiner's opinion and September 2013 addendum. The July 2012 examiner stated: [The] Veteran's hallux valgus bilaterally, hammertoes right and left second toe and chronic bilateral foot strain is less likely than not caused by or the result of . . . service, to include the reported foot injury sustained during service. [The r]ationale [is based on] medical literature review, medical records review, [and] clinical experience. Claims file review finds [K.B.C.'s] statement reporting that Veteran had service on the U.S.S. Harry F. Bauer and injured his feet when a five-inch projectile weigh[ing] more than 50 pounds fell on his feet. [The] Veteran's bilateral foot injury took place over 60 years ago and history of possible intercurrent injury post service is unknown. The July 2012 further clarified her opinion in a January 2013 addendum by adding the following: As stated, [the] Veteran's hallux valgus, hammertoes . . . and chronic bilateral foot strain is less likely than not caused by or the result of . . . service, to include the reported foot injury sustained during service. This would be the result of the injury described [in K.B.C.'s] statement. This injury occurred over 60 years ago, [and] history of intercurrent injury is unknown. It is also unknown if [the] Veteran had hallux valgus and hammertoes at the time of his foot injury 60 years ago. The May 2013 examiner examined the Veteran and then noted that she reviewed the claims file. She opined that [the] Veteran's current bilateral feet condition, hallux valgus bilaterally, hammertoes right and left second tie and chronic bilateral foot strain is less likely as not began in or is otherwise related to military service, to include dropping a heavy shell on his feet. There is no objective evidence whatsoever of any chronic feet condition while in service or in any close proximity to his separation from service. There is no objective evidence of any trauma to the feet nor evidence of any fracture, evaluation or treatment to either foot in service. The separation examination dated [July 24, 1970] is absolutely silent regarding any feet problem, complaint or condition. Feet examination was normal. He marked "no" to "history of broken bones" and "foot problems" on the Reports of Medical History dated [July 20, 1970] (separation examination). The May 2013 examiner provided clarification in a September 2013 addendum, which reads: [The] Veteran's current bilateral foot condition is less likely as not caused by, a result of, or aggravated by his time in service, to include a heavy shell dropped on the Veteran's feet, as reported by the Veteran. There is no objective evidence whatsoever of any chronic feet condition while in service or in any close proximity to his separation from service. There is no objective evidence of any trauma to his feet nor evidence of any fracture, evaluation or treatment to either foot while in service. However, the Veteran claimed that he had a heavy object dropped on both feet during service. This claim is not supported by objective evidence however, evidence if it did happen, the trauma was acute and transitory, resolved without residuals and no chronic disability is associated to the incident. Again, the objective evidence shows that the separation examination dated [July 24, 1970] is absolutely silent regarding any feet problem, complaint or condition. Feet examination was normal. He marked "no" (therefore denying any problems) to "history of broken bones" and to "foot problems" in the Reports of Medical History dated [July 20, 1970] (separation examination). There is no mention of hallux valgus, hammertoes or any other foot abnormality during his separation examination. There is no evidence of any feet problem in any close proximity to separation from service. In summary, there is no competent evidence showing a chronic disability associated to the alleged incident of a heavy object dropped on the Veteran's feet. The bilateral foot symptoms complained of over 60 years later cannot reasonably be connected to active duty service when there are multiple other aging/occupational/daily activity factors in the intervening years. She additionally cited medical literature for both hallux valgus and hammertoes in her examination report, as well as noting a June 2010 VA neurosurgery consultation report, which she noted as demonstrating "non-contributory regarding feet problem." Based on the foregoing evidence, the Board finds that a nexus to service for the noted 3 currently-diagnosed bilateral foot disorders is not warranted at this time. First, the Board notes that the Veteran's service was from 1942 to 1946, and the Board is unable to find any 1970 service documents in the claims file. Thus, the Board cannot understand how the May 2013 examiner cites evidence that does not exist, except to believe that she is clearly mis-typing the dates of the Veteran's service documents. Regardless of this clear error and reference to 1970 service treatment documents, the Board when weighing the evidence of the July 2012 and May 2013 examiners' opinions and addendums together finds that those opinions are the most probative evidence in the claims file at this time. The Board notes that, even given the clear error with respect to the dates by the May 2013 examiner, the May 2013 examiner's analysis of the substance of the service treatment documents is correct. There is no objective evidence in those records of any bilateral foot injuries or disorders, and the Veteran's separation document does not demonstrate any complaints of any bilateral foot disorder at that time; in fact, his feet were shown to be normal on his separation examination. She noted that even when she conceded that the heavy shell fell on his feet during service, that such an injury was acute and transitory and had resolved in service without any chronic disability stemming therefrom; again, the Board notes that this is supported by the objective evidence in the separation examination. This evidence, when coupled with the July 2012 examiner's opinion which notes that there is no evidence to link the over 60-year-old injury with his currently diagnosed bilateral foot disorders, provides a competent and probative medical opinion in this case. Even given the obvious flaws in the two VA medical opinions in this case, the Board finds that when weighed against Ms. T.F.'s statement and the Veteran's lay evidence with respect to continuity of symptomatology, which is generally refuted by his psychiatric disorder and other older treatment records that lack any complaints of bilateral foot disorders, the probative value of the VA medical opinions outweighs the probative value of the lay statements and Ms. T.F.'s statement. Accordingly, the Board finds that service connection for bilateral foot disorders, to include bilateral hallux valgus, hammertoes of the second toe bilaterally, and chronic bilateral foot strain, must be denied on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral foot disorders, to include bilateral hallux valgus, hammertoes of the second toe bilaterally, and chronic bilateral foot strain, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs