Citation Nr: 1802515 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-18 560A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disorder, to include on a secondary basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO granted service connection for internal derangement of the right knee, and denied service connection for a lower back disorder, left knee disorder, and bilateral foot disorder. The Veteran filed a Notice of Disagreement (NOD) in March 2011, contesting the denials of service connection for a bilateral foot condition and a lower back condition. In June 2011, the RO furnished the Veteran a Statement of the Case (SOC). In July 2011, the Veteran filed his Substantive Appeal (VA Form 9). In September 2014, the Board issued a decision that granted service connection for a low back disorder. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In September 2014, March 2016, and December 2016, the Board remanded the issue of service connection for a bilateral foot disorder for additional development and the case now returns for further appellate review. In March 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. The Veteran requested an extension of time in order to submit new evidence in a letter dated August 22, 2017. The record was held open in abeyance for 30 days to allow the Veteran to submit additional evidence on October 19, 2017 by the Board. The Veteran did not submit any additional evidence during this time period, and the case now returns before the Board for review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic record. FINDING OF FACT A bilateral foot disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disorder, including on a secondary basis, have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 Veteran's 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. LEGAL CRITERIA Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303(a) (2017). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service incurrence of a disease or injury. See, e.g., Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disease diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). In order to prevail under the theory of secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between a current disability and a service-connected disability, showing that the current disability was either caused or aggravated by the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Under applicable law, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. 38 C.F.R. § 3.310(b). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. BACKGROUND The Veteran served in the Marine Corps from January 1996 to January 2000 as a military police officer and military working dog handler. See Form DD-214. The Veteran alleges that his bilateral foot disorder was caused by his service, or in the alternative was either caused or aggravated by his service-connected internal derangement of the right knee and lower back condition. The Veteran's January 1995 Enlistment examination and December 1999 Separation examination reveal no complaints of a foot disorder. In August 2009, the Veteran was seen by a private physician, Dr. D.P., in San Antonio, Texas. The notation indicates that the Veteran reported pain and numbness in the 2nd and 3rd digits and bottom of the right and front plantar region of the left foot, which seem to be aggravated by weight bearing activities, forward flexion, long periods of standing or sitting, and transitions from sitting to standing. The Veteran's representative noted in the March 2011 Notice of Disagreement and the February 2013 VA Form 9 that the Veteran was treated for foot pain with ice and Motrin during basic training, but that no mention was made about the treatment in the Veteran's service treatment records. The NOD also states that the Veteran now wears custom inserts for his shoes. The Veteran submitted private treatment records dated December 2011, showing diagnoses of right plantar fasciitis and right tibial sesamoid fracture. In March 2014, the Veteran's spouse submitted statement, noting that her husband sustained many minor to moderate injuries during his military service that were unreported. The Veteran's spouse stated the Veteran continues to have issues with his feet and back that she knows are related to his time in the military as a canine handler, as she has seen the dogs tackle very large men, and her husband often came home with sore muscles. In March 2014, the Veteran's mother in law submitted a letter, stating that the Veteran's feet, knee, and back issues are related to the Veteran's service. The Veteran's mother in law stated that she personally delivered inserts to the Veteran during his time of service, and that she believes the military boots do not provide adequate support. She further stated that knees feet and hips have a direct and indirect relation to each other. The Veteran provided testimony during his March 2014 hearing that he had bruises on the balls and heels of his feet during service, and that he wore inserts to alleviate some of the pain, and that he continues to deal with foot issues. The Veteran further stated that his foot issues are related to his back, legs, and hip. The Veteran stated that medical professionals told him that there is a relationship between the internal derangement of the right knee and the plantar fasciitis and possibly the bone spurs and chipped bones in the Veteran's feet. The Veteran underwent a July 2015 VA examination, in which the examiner reviewed the Veteran's claims file and performed a physical examination of the Veteran. The examiner diagnosed the Veteran with pes planus, plantar fasciitis, a left plantar calcaneal enethophyte, and right first metatarsalagia. The examiner noted that the Veteran reported that he was not seen in sick call or clinic visits while in service for his foot disorders. The Veteran reported not being seen for foot pain until 2008 or 2009 in San Antonio, Texas after service, and subsequently in 2012 or 2013 in Round Rock, Texas. The Veteran reported no other medical treatment for his foot disorders between the Round Rock, Texas visit and the July 2015 VA examination. The examiner opined that the Veteran's diagnosed foot conditions were less likely than not causally related to the Veteran's military service. The examiner's rationale was that the Veteran's service treatment records do not mention complaints or treatments related to any foot conditions while in service, and that the Veteran's foot disorders were not diagnosed until approximately 11 years after the Veteran's military service. The July 2015 VA examiner further opined that the Veteran's foot conditions were less likely than not caused by or aggravated by the Veteran's service connected low back and right knee disorders. The examiner's rationale was that the knee and back conditions are not known to cause foot conditions and that the Veteran's specific foot conditions may be related to the Veteran's current employment, which requires prolonged standing. An addendum opinion was provided in April 2016, in which the VA examiner stated that the Veteran's bilateral foot disorder was less likely than not a result of military service. The examiner's rationale was that there is no evidence showing foot disorders while in service, noting that the (service department) examiner checked "no" for foot problems during the Veteran's Separation examination. The examiner noted that the Veteran was not seen privately for over ten years after service and was diagnosed with plantar fasciitis with tibial sesamoid fracture right metatarsalgia. The examiner noted that the Veteran has held employment that requires prolonged weight bearing, which likely has caused the current foot conditions in addition to the process of aging. The examiner explained that plantar fasciitis is caused by overuse, in which this Veteran is experiencing due to employment; that there is no indication that his bilateral pes planus, which is symmetrical was caused by traumatic event; and that it is the natural progression of pes planus to worsen over time and with aging. According to the examiner, there is also no indication that the sesamoid fracture was sustained while in military service. In the April 2016 addendum opinion, the examiner also opined that the Veteran's right knee disorder and low back condition are less likely as not the cause of his current foot conditions, noting that there was no indication of foot conditions on his separation examination from the military. The examiner noted that knee and back problems are not known to cause foot conditions unless they are neurologically related to one another, explaining that the Veteran's current diagnoses in question are not neurologically related. In a March 2017 addendum opinion, the examiner opined that it is less likely than not that the Veteran's foot disorder is proximately due to his service connected internal derangement of the right knee and/or the low back condition. The examiner's rationale was that the there was no indication of foot conditions on his separation examination from the military, and that knee and back problems are not known to cause foot conditions. The examiner explained that the Veteran's current foot conditions of plantar fasciitis, pes planus, and metatarsalgia are aggravated due to overuse and prolonged weight bearing, which is the nature of his employment, and that there is no medical evidence in peer reviewed journals that suggest knee and back conditions will cause foot disorders. The VA examiner also opined in the March 2017 addendum opinion that it is less likely than not that the Veteran's bilateral foot disorder is aggravated by his service connected internal derangement of the right knee and low back disability, as there is no medical literature to suggest that knee and low back pain will cause a permanent increase in severity beyond natural progression of his current foot disorder of plantar fasciitis, pes planus, and metatarsalgia. The examiner concluded that the Veteran's current foot diagnoses are aggravated by overuse with prolonged weight bearing and walking. IV. ANALYSIS Initially, the claim must be denied on a direct basis. First, the service treatment records, including the separation examination, revealed no pertinent complaint, diagnosis or treatment of a foot disorder. Rather, the earliest evidence of a foot disorders is the report of pain and numbness in the feet during the Veteran's August 2009 private practitioner visit in San Antonio, Texas, and a December 2011 diagnosis by private practitioners in Round Rock, Texas. While the Veteran's representative maintains that the Veteran underwent medical treatment by a corpsman during service, the Veteran reported a medical history at the July 2015 VA examination, along with the March 2014 lay statements from the Veteran's spouse and his mother-in-law, stating that the Veteran never sought treatment in service for his feet. The Veteran reported bruising on his feet during service at his March 2014 hearing testimony. While the Veteran is competent to report bruising, there is insufficient evidence to show that any such bruises are related to his current foot disorders, when compared against the Veteran's separation examination results which show no finding or pathology of a foot disorder following the Veteran's alleged incurrence of bruising during service. Moreover, the record evidence contains no medical opinion that links the Veteran's current foot disorders to service on a direct basis. Although there is a current diagnosis, the Veteran has not presented evidence sufficient to show a connection, or link, between his current foot disorders and his military service, including any foot bruising he purports to have sustained in service. Therefore, service connection on a direct basis must be denied, as all three required elements for service connection have not been shown. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board also finds that service connection for a bilateral foot disorder as secondary to the Veteran's service-connected low back and right knee disabilities is not warranted. In this regard, the July 2015 VA examiner, as well as the examiner who provided the April 2016 and March 2017 addendum opinions, found that there is no relationship between the Veteran's current bilateral foot disorder and his service-connected disabilities of the right knee and low back. Furthermore, all three opinions point to the Veteran's current employment (which involves weight bearing activity) as an offending cause of the Veteran's current bilateral foot disorder. As the July 2015 VA examiner, in combination with the April 2016 and March 2017 addendum opinions, offered clear conclusions with supporting data (as evidenced by the separation examination report) as well as a reasoned medical explanation connecting the two, the Board accords great probative weight to these opinions. See Nieves-Rodriguez, supra; Stefl, supra. While the Veteran, his spouse, and the Veteran's mother-in-law maintain that his bilateral foot disorder is secondary to his service-connected disabilities of the right knee and low back, the Board accords those lay statements regarding the etiology of his low bilateral foot disorder little probative value, because the record contains no evidence suggesting that they are competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation and aggravation of a musculoskeletal disorder 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 not probative evidence. See Jandreau, 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, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board determines that service connection for a bilateral foot disorder is not warranted on either a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral foot disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a bilateral foot disorder, to include on a secondary basis, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs