Citation Nr: 1751762 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-38 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral foot disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board remanded the appeal in December 2014 and requested the RO schedule the Veteran for another VA examination and readjudicate his claims. A memo issued in February 2016 indicated the RO was unable to comply with the Board's May 2014 remand directives requiring a podiatrist to conduct the exam; the RO exhausted all efforts but was unable to secure a podiatrist to complete the Veteran's foot examination. A VA examination was conducted in February 2016. Therefore, the Board finds that the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). An October 2016 rating decision awarded a total disability rating based on unemployability (TDIU) effective June 7, 2011. The Veteran did not submit a notice of disagreement as to that issue; however, in the July 2017 post remand brief, his representative argued that a TDIU was warranted prior to June 7, 2011. That issue is not the subject of appeal and therefore not properly before the Board. 38 C.F.R. § 20.200 (2017). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for any appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT A chronic bilateral foot disorder, to include hallux valgus, Morton's neuroma, pes planus, hammertoes, and arthritis, did not have its onset during active service and is not etiologically related to service, to include as due to degenerative disc disease. CONCLUSION OF LAW The criteria for service connection for bilateral foot disabilities have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran, nor his representative, has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends his foot disabilities are a result of an injury sustained in service or secondary to his back disability. His November 1968 enlistment exam and report of medical history showed no foot trouble or injuries prior to service. Review of his service treatment records revealed a possible diagnosis of pes cavus (raised arches) in October 1970 but x-rays taken the following month showed no definite abnormalities except for an irregularity in the great toe possibly due to previous trauma. A note from September 1969 indicated he dropped an item made of steel on his left great toe. VA treatment records showed several complaints of bilateral foot pain, soreness and decreased sensation; however, these symptoms were often associated with diabetic neuropathy or gout. Degenerative arthritis was seen on an x-ray of both feet from April 2007. X-rays taken in May 2011 showed hallux valgus with degenerative changes but it was stable since x-rays taken in November 2008. X-rays taken in January and July 2012, and September 2013 showed mild to moderate hallux valgus and degenerative changes. Mild heel spurs were noted on the January 2012 x-ray and pes planus was also noted on the September 2013 x-rays. During his May 2014 hearing, the Veteran indicated that during service he was forced to jump out of a plane and injured his back, knees, and feet. He did not seek any treatment or go to sick call because as a squad leader, he did not want to leave his team. He also discussed feeling pressure on his feet from his back and knee problems. He believed the diagnosis of pes cavus in service was incorrect because the current pes planus diagnosis is the opposite. The Veteran was afforded a VA examination in February 2012 and the Veteran reported pain and cold sensation in his feet. The examiner diagnosed hallux valgus but did not note any symptoms due to the condition. X-rays showed the hallux valgus deformity with arthritic changes of great toe and less toes, as well as a tiny heel spur. The examiner indicated the condition did not impact his ability to work; no further opinion was provided. During the February 2016 VA examination, the examiner diagnosed bilateral pes planus, hammertoes, hallux valgus, degenerative arthritis and Morton's neuroma in the left foot. Current x-rays did not show any evidence of heel spurs; the examiner felt the diagnosis did not apply to the Veteran. The examiner commented on the diagnosis of pes cavus during service noting that it did not apply to the Veteran and was most likely an inaccurate diagnosis at the time. The examiner noted that if the examiner in service was considering a diagnosis of pes cavus, the Veteran most likely did not have flat feet at that time, and pes planus was not diagnosed via x-ray until 2013. Additionally, the examiner found that it was less likely as not that pes planus was caused or aggravated by a back condition because back problems do not typically affect the feet and there was no particular reason why back trouble would suddenly affect the feet after the Veteran had suffered for many years prior. As for hallux valgus, although the examiner found a current diagnosis, it was not seen on x-rays until 2011, and as it is a fairly recent diagnosis it is unlikely to be due to military service approximately 39 years before. The opinion stated that it was not related to the Veteran's back condition as the hallux valgus is a more recent problem and is more likely due to aging, including the breakdown of the arches in the feet. The examiner found that the Morton's neuroma diagnosis was more likely due to the recently developed flat foot, as there is no suggestion that his symptoms date back to his time in service. Further, it is not related to his back condition; the back condition is long standing and the neuroma has a more recent onset. As for the hammertoes diagnosis, the examiner concluded that it was the result of aging and flat feet. Due to its more recent onset, there is nothing in the records suggesting hammertoes developed during service and there is no reported association with a low back condition. Lastly, the examiner did not find the Veteran's degenerative arthritis of the feet to be related to service because it is more likely that it is due to aging and occupational wear and tear. The diagnosis was first seen in 2007 and has progressed slightly but the change is insignificant; it is unlikely that arthritis began during service more than 36 years ago. Additionally, the examiner found that arthritis was not caused or aggravated by the Veteran's back condition because the current severity and degree are common findings in patients his age and with his occupation. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for the claimed bilateral foot disorders. In this regard, the Board places great probative weight on the February 2016 VA examiner's opinions that the Veteran's disorders were not related to his service or to his service-connected back disability. The Board observes that the examiner considered the Veteran's record and medical history in rendering the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). With specific regard to the secondary aspect of the Veteran's claims, the Board is cognizant that the February 2016 VA examiner clearly opined that the Veteran's bilateral foot disorders were not aggravated by his service-connected back disability, and provided a sufficient rationale for such opinion based on medical evidence showing that his conditions were more likely due to age. As discussed above, the Board finds the February 2016 opinion to be sufficient for appellate review and of high probative value. Consequently, based on the foregoing opinions, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's foot disabilities are related to his military service or that his service-connected back disability caused or aggravated such disorders beyond the natural progression. Moreover, no other evidence of record refutes the VA examiner's opinions. In this regard, none of the remaining VA treatment records suggests an etiological relationship between the Veteran's current bilateral foot disorders and his military service or service-connected back disability. As such, given that the most probative evidence of record shows that the Veteran's foot disabilities are not directly related to his military service, or proximately due to or aggravated by the service-connected back disability, service connection on a direct or secondary basis is not warranted. The Board has also considered whether service connection is warranted for the Veteran's foot disorders on a presumptive basis (as degenerative arthritis is shown). The Board notes, however, the record fails to show that the Veteran's feet manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge. Additionally, he has not provided a credible account of a continuity of bilateral foot symptomatology other than vaguely stating he has had foot problems since service. Moreover, the earliest medical evidence of any foot condition, including pain, is from 2006. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for foot disabilities. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309, Walker, supra. The Veteran has also offered his opinion that his bilateral foot disorders are due to service or has been caused or aggravated by his service-connected back disability. The Board notes, however, the question of causation and aggravation of a musculoskeletal disorder of the foot, to include arthritis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds that the Veteran's foot disorders are not related to any disease, injury, or incident of service; degenerative arthritis did not manifest within one year of service discharge; and such disorders were not caused or aggravated by the Veteran's service-connected back disability. Consequently, service connection for such claimed disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board observes, however, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral foot disabilities. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral foot disabilities is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs