Citation Nr: 1753681 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-20 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disability, to include residuals of frostbite, heel spurs and plantar fasciitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1986 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge at an August 2012 hearing held at the RO (Travel Board). A transcript of this hearing is of record. The Board remanded the issue on appeal for additional development in January 2014, August 2014, July 2015, and February 2017. As the actions specified in the remands have been completed, the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for gastroesophageal reflux disease (GERD) was raised by the record in an August 2002 statement. In August 2014 and July 2015, this matter was referred by the Board for initial adjudication by the Agency of Original Jurisdiction (AOJ). It does not appear that the AOJ has yet taken action on the issue, and as Board does not therefore have jurisdiction over it, it is referred again to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. The Veteran does not currently have any foot condition attributable to frostbite or other cold weather injury. 2. The Veteran's calcaneal spurs and plantar fasciitis did not have onset in service and were not caused or permanently aggravated by his active military service, to include as secondary to his service connected bilateral knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disability, to include residuals of frostbite, heel spurs and plantar fasciitis, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As an initial matter, the Board notes that it appears that some of the Veteran's service treatment records are missing and all attempts to obtain them have been exhausted. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. The Veteran in this case is seeking entitlement to service connection for a bilateral foot disability. He has raised two theories of entitlement. The first is that he has a foot disability related to frostbite suffered in service. Available service treatment records show that in January 1991, the Veteran was treated for chapped and cracked skin, medial side proximal to great toe bilaterally, after serving in the field for 6 days. He was diagnosed with callus formation with fissuring on bilateral soles and placed on a profile for five days. Service treatment records do not show any additional treatment for foot pain or injury, including frostbite, although the Veteran reported frostbite of both feet at separation in August 1994. Post-service, VA outpatient treatment records show treatment for calcaneal spurs beginning in 2008 and for plantar fasciitis beginning in 2013. A September 2014 VA medical opinion notes that although the chapped and fissured feet noted in service are often associated with colder weather, the symptoms described in service are not consistent with a typical presentation of frostbite and are not considered a cold weather injury. Even assuming that the Veteran did suffer from frostbite, as he claims, the examiner further explained that calcaneal spurs and plantar fasciitis are not clinically related to frostbite or other cold related injury and are therefore less likely than not related to any cold weather exposure in service. Finally, the examiner also noted that there was no evidence of treatment for calcaneal spurs or plantar fasciitis in service or for many years after service and therefore the examiner could not establish a nexus between the Veteran's current complaints and the clinical findings noted in service. The Veteran has also raised a second theory of entitlement, which was that his foot problems were related his service connected bilateral knee disability. However, a March 2017 VA medical opinion concluded that it was less likely than not the Veteran's current foot problems were caused or aggravated by his bilateral knee problems, explaining that degenerative arthritis is not a contagious disease and that generally, except in cases of inflammatory or auto-immune disease such as rheumatoid arthritis, a condition affecting one joint does not lead to the development of a condition in other joints. The examiner elaborated: There is no clear evidence in the Medical Literature to suggest that a condition of a lower extremity pair of joints like the knees, would have any significant impact on the feet, whether causing or aggravating the foot condition, unless the condition resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern is altered to the extent that clinically there is an obvious lurching type gait (a significant limp). This is not the case for this veteran's claim. Based on all the above evidence, the Board finds entitlement to service connection for a bilateral foot disability of any kind is not warranted. There is no evidence that the Veteran was treated for calcaneal spurs or plantar fasciitis in service or that he was diagnosed with these conditions until more than a decade after service. VA medical opinions have concluded that these disabilities are neither related to the Veteran's in-service callouses nor caused or aggravated by his service connected bilateral knee disability. Additionally, the Board can find no evidence that during the period on appeal, the Veteran was treated for residuals of frostbite or that he had any additional foot disability that was related to his active service. While the Veteran himself may sincerely believe that he has a current foot condition related to service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has calcaneal spurs or plantar fasciitis due to one instance of treatment for callouses in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Hence, the Veteran's opinion of the etiology of his current foot disability is not competent evidence and is entitled to low probative weight. Significantly, multiple VA examiners have concluded that there is no relationship between the Veteran's current foot problems and his service, and the Veteran has not presented any medical evidence or opinions that would contradict these examiners findings. The Board has carefully considered the Veteran's lay testimony, including his August 2012 hearing testimony, but finds that it is of limited probative value compared to other evidence of record. The Veteran has testified that he had foot problems in service and that since that time, "I've always had a little trouble with my feet." However, the Veteran's testimony regarding what symptoms he experienced and when is somewhat vague and confusing. The Veteran speaks in a general way about experiencing foot pain both during and after service, but pain can be caused by many foot conditions, both acute and chronic. Furthermore, the Veteran appears to discount the effects of his post-service employment- per the Veteran's own reports, he worked for many years at a job that required prolonged standing and walking. Ultimately, the Board concludes that the question of whether the Veteran's current foot problems are related to service is too complex to be determined by a lay person and the Board gives the greatest weight to the opinions of the VA examiners, who have determined that it is less likely than not the Veteran's current foot problems are related to his in-service injury. For all the above reasons, entitlement to service connection for a bilateral foot disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2017). Here, the Veteran was provided with the relevant notice and information, and he has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's available service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a personal hearing before a member of the Board. The hearing was adequate as the Veterans' Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Entitlement to service connection for a bilateral foot disability, to include residuals of frostbite, heel spurs and plantar fasciitis. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs