Citation Nr: 1801992 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-10 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to March 1967, and had additional service in the Air Force Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board observes that in February 2016, the Veteran asserted entitlement to service connection for a skin disability affecting his right ankle and/or foot. This claim was denied in a July 2016 rating decision, and was not appealed. As such, the Board's decision will address only orthopedic foot disabilities, and not any disabilities related to the skin. In March 2017, the Board remanded this case for additional development. The case is now again before the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2015). FINDING OF FACT The Veteran's right and left foot disabilities were not present in service or until many years thereafter, and are not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for right and/or left foot disabilities have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claims. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded an appropriate VA examination in relation to his claims. The Veteran has not identified any outstanding evidence that could be obtained to further substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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 the Veteran's claims. The Veteran has asserted entitlement to service connection for bilateral foot conditions. He has claimed he injured his feet during service in Vietnam, to include having fractured his right ankle and/or foot. He asserted he was treated with Aspirin by Air Force medics, but that his feet were not examined at discharge. At this juncture, the Board observes the Veteran entered active duty in March 1959. His enlistment examination shows a normal foot evaluation, and on his report of medical history at entry he indicated he had no history of foot trouble. Subsequently, a December 1964 medical examination included a normal evaluation of the feet and lower extremities, and on an accompanying report of medical history, the Veteran indicated he had no history of foot trouble. Likewise, a January 1967 separation examination included a normal evaluation of the feet and lower extremities, and on an accompanying report of medical history, the Veteran indicated he had no history of foot trouble. Later, a November 1972 examination performed during the Veteran's Reserve service included a normal evaluation of the feet and lower extremities, and on an accompanying report of medical history, the Veteran indicated he had no history of foot trouble. The Board also observes that the Veteran's STRs show he was treated for a variety of ailments during service, but no treatment records related to his feet or ankle are present. The earliest medical records related to the Veteran's foot symptoms appear in May 2005. The records show the Veteran has been treated by private treatment providers intermittently from 2005 to as recently as September 2016. Pursuant to the Board's March 2017 remand, the Veteran was afforded a VA contract examination in May 2017. The examiner diagnosed pes planus, hammer toes, plantar fasciitis, and degenerative arthritis of the feet, all present in both feet. The examiner noted the Veteran's report that in approximately 1965, his right foot/ankle was fractured on the lateral aspect and the skin was cut. The Veteran recalled his foot was wrapped and he was treated with Aspirin. He reported that since his injury, he had had pain on the right foot/ankle when walking or standing, and that by the time he was discharged from service, both his feet had flattened. The examiner ultimately concluded it was less likely than not the Veteran's disabilities originated during or were otherwise etiologically related to his service. The examiner stated that her opinion was based on a thorough review of the claims file, including all available medical records, as well as current peer-reviewed medical literature. Particularly, the examiner noted there was no supporting information in the medical records showing any foot condition during service, nor were there any medical records showing the Veteran's current foot conditions were related to service. With regard to the Veteran's degenerative arthritis in particular, the examiner noted this was a progressive condition that took many years to develop, and stated it was less likely than not the condition was incurred in service, and more likely that it occurred on its own over the course of many years. In a September 2017 addendum to her opinion, the examiner noted that she had considered the Veteran's lay statements to the effect that he had injured his feet during service, but stated there was insufficient evidence to support his claim. In particular, she noted there was no record in the Veteran's STRs suggesting any issues involving the feet or ankles during service. Upon a review of the foregoing, the Board has determined that a preponderance of the evidence weighs against the Veteran's claims and that consequently, the claims must be denied. In this regard, as noted by the VA contract examiner, the Board observes that there is no documentation of any foot symptoms or treatment in the Veteran's STRs. The Veteran asserts that his foot condition began in service. The most probative evidence of record does not support a finding that his foot condition had its onset during service or is otherwise related to service. There is no evidence, other than the statements of the Veteran that his foot condition occurred in service. Although the Veteran is competent to report what he experienced in service, the Board does not find these lay reports to be credible because they are not supported by the Veteran's available service records and are contrary to the Veteran's contemporaneous statements made at his separation from service, as shown by the December 1964, January 1967, and November 1972 reports of medical history, on which the Veteran himself indicated he had no history of foot trouble. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (noting that the credibility of evidence can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, bias, self- interest, malingering, desire for monetary gain and witness demeanor). Thus, the lay reports of the Veteran are afforded no probative value. Instead, the earliest medical evidence of foot symptoms appears in May 2005, more than 35 years following active service. After careful consideration, the Board has determined the Veteran's STRs, which documented his medical history and symptoms during and upon discharge from service, are more probative than his statements made in the context of his claim for VA benefits many years later. In short, for the foregoing reasons, the Board finds that the Veteran's contentions that he injured he feet in service, and that he has suffered from foot pain and others symptoms since that time, are not credible. In addition, the Board notes there is no medical evidence of record to support the Veteran's claims. Instead, the only medical evidence of record addressing whether there is a connection between the Veteran's bilateral foot conditions and his service weighs against the claims. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined that a preponderance of the evidence weighs against the Veteran's claims. As such, the doctrine is inapplicable, and the claims must be denied. ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs