Citation Nr: 1805665 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-03 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to January 1994. This matter is 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) in Fort Harrison, Montana. In July 2016, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims folder. In September 2016, the Board found that new evidence has been received sine a prior August 1994 rating decision with respect to the Veteran's claims for a left ankle disability and left ankle injury, and reopened the claims. The Board also remanded the issue of entitlement to service connection for a right foot disability. The Board remanded the appeals for further development. The remand required the RO to take appropriate steps to request any updated VA treatment records and to obtain a VA medical etiology opinion. In compliance with the remand directives, a November 2016 VA medical opinion was obtained. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A left ankle disability was not manifest in service or within one year of separation 2. A left foot disability was not manifest in service or within one year of separation 3. A right foot disability was not manifest in service or within one year of separation CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. A left foot disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. A right foot disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran 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 duty to assist argument). I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran 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 duty to assist argument). II. Service Connection To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection may also be established for arthritis manifesting to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. 3.307, 3.309(a). 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 distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The 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. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). III. History A Service Treatment Record (STR) from December 1991 shows acute injury to the feet when the Veteran jumped off of a platform. An August 1993 STR shows complaints of bilateral lower leg pain. He had pain along the shins of the legs. A subsequent September 1993 STR shows pain in the feet and legs when running. An exit examination is not of record in the Veteran's STRs. In August 1993, the Veteran was afforded VA General Medical Examination. The Veteran originally injured his left foot after he jumped off of a ship onto a dock when they were doing a ship search. X-rays were negative, and there was no evidence of fracture, however, the Veteran continued to have painful problems with his foot. It still gets painful and stiff. It is worse in the morning. He finds it difficult to run as a result. He has right and left calf pain in his legs and also in the front of his legs with running. It is most severe in the morning. X-ray of the left foot reviewed a negative impression. In February 2003, the Veteran complained of bilateral foot and ankle pain. X-rays were within normal limits. July 2010 imaging first revealed degenerative changes posterior facet talar-calcaneal joint. Osteoarthritis metatarsal region was found. There were no acute fractures. A CT evaluation of the left foot was obtained. The ankle joint is relatively well-preserved. There was a small calcaneal spur present at the insertion of the plantar fascia. Metatarsal degenerative changes were present as well as degenerative changes at the tarametatarsal joint. There was no evidence of acute fractures or bony fragments. There were no additional abnormalities. The Veteran was afforded a September 2010 VA examination. He described his foot pain as constant with symptoms of weakness, stiffness, swelling, heat, redness, instability, locking, fatigability, and lack of endurance. The VA examiner opined that the Veteran's current foot complaints are unrelated to the reported 1991 injury based on intercurrent lapse in time and prior x-ray. The VA examiner noted that the Veteran had two entries in 1991 regarding foot injury, with no complaints of foot pain in the remaining three years. There were also no complaints of foot pain until a disability examination in 1993, then no complaints of foot pain until the 2003 disability exam, when the Veteran does not report foot pain, but rather bilateral ankle pain. The VA examiner reported that the next entry regarding foot pain is in April 2010. Base on the accumulative evidence, the VA examiner opined that the subjective complaints of foot pain in 1991 are less likely than not due to current symptoms or any event during service. A January 2011 private treatment record from Dr. C. C. S. conclude that the Veteran's left foot and ankle pain is linked the previous injury, when the Veteran reported stepping onto a boat for a drug search, which was part of his job at the time. The Veteran was afforded a VA examination in May 2012. The Veteran reported that he injured his left foot in December 1991 from jumping off of a dock approximately five feet above. He was seen the next day with left foot pain, and x-rays were taken of the left foot. He was sent to the orthopedic clinic the next day, and x-rays confirmed it was negative. He did not report suffering an injury to the right lower extremity. He had no follow up visits for the left foot or ankle while still in service. In 1993, he had shin splints and plantar fasciitis, which resolved. He reported that a private MRI of the left foot was done in March 2010. At the May 2012 VA examination, the Veteran reported symptoms such as the left ankle being easier to roll, and the front of the ankle and top arch are sore constantly. The left big toe throbs especially in the first joint, with no other symptoms in the left foot or ankle. Both feet get cold, hurt more, and feel wet year round. He has two pairs of footwear ordered by his VA podiatrist. The Veteran reported that he has orthotics but is not wearing them today. He reported no other symptoms in the right foot or ankle. The VA examiner found that the Veteran had shin splints in 1993, which were treated with rest and NSAIDS. He currently has no symptoms. The VA examiner opined that it was notable that the Veteran has degenerative osteoarthritis shown on x-rays of bilateral feet of July 2010 that is not described as being more severe or less severe in L foot or in R foot. This indicates that the cause of DJD changes is not the injury reported in 1991 to the left foot only, but rather the stresses and use that both feet have experienced over many years, aggravated by severe obesity. He elaborated that bilateral ankle and tibia-fibula x-rays in February 2003 also noted similar findings bilaterally. The physical examination on that day was unremarkable. The Veteran testified at a July 2016 hearing. He was on a frigate for the Navy doing a drug search. When he was going to leave the ship, he had to step down on the portable stairs and as he stepped, a wave came in and lifted the ship so he was airborne and got dropped down to the bottom of the steps. Unfortunately at that time they also were arming the ship, and they dropped a missile and it was armed on the deck so they couldn't drive and leave. He had to sit there for an hour until they got that cleaned up, and then I had an hour drive back to the Fort he was at. He went to the emergency room at, it was Patterson Army Hospital and there as a DOD civilian and she, a doctor, told him that his foot was broken. It was black and purple. An Army captain came in and they got in an argument. The nurse came in and said you can go home, nobody is coming back. The Veteran testified that he never heard a diagnosis from his treating physicians. He had to cut his boot off with his roommate. Later, he went to see a podiatrist, and the podiatrist told him that there was nothing wrong with his foot, and gave him orthotics for his shoes. The Veteran also suffered cold injuries to his feet when a water fountain broke and they had to use riot shields to push the water down. His feet were wet for two or three hours before he could get to an emergency room, due to staffing issues. When he finally arrived, his feet were bone white and there were chunks of ice between all of his toes. In November 2016, the Veteran was afforded a VA examination. The VA examiner explained that although the Veteran reported of cold weather exposure during service while in Korea, there is no objective evidence of complaints, evaluations, diagnosis or treatment of cold-related injuries/symptoms to the feet and/or ankles during military service or in the years following discharge from military service until 2010. The VA examiner reported that there was no objective evidence of cold-related injuries involving the feet or ankles noted on the VA examinations done in 1993 or 2003. The available evidence of record indicates that the Veteran's right foot/ankle surgery conducted on September 1, 2015, over twenty-one (21) years after military service discharge was performed as a result of a Workmen's Compensation injury and therefore not caused by or elated to any incident noted during active military service. The VA examiner explained that the record shows no objective evidence of intercurrent complaints, evaluations, treatments or diagnosis of the left foot injury from 1991 to 1993 at which time metatarsalgia of the left foot was identified. After that VA examination, there is no objective evidence of intercurrent complaints, evaluations, treatments or diagnosis of the left foot injury until ten (10) years later when the Veteran was evaluated again. Bilateral ankle x-rays in 2003 were negative, and the clinical examination was normal and there was no objective evidence of metatarsalgia of the left foot. The VA examiner also noted in the review of available records that there was no objective evidence of complaints or identification of a left ankle injury at the time of left foot injury in December 1991. The minimal osteoarthritis and calcaneal spurs of the Veteran's bilateral feet only first identified on x-ray in 2010. The VA examiner explained that one could expect to see a more severe degenerative change and advanced spurring had a significant injury occurred during service Additional VA and private treatment records are substantially the same. IV. Analysis The Veteran is competent to relate what he has been told by a professional. He is also competent to report that he injured his ankle in service, and that his foot turned color. The Veteran is also competent to report his symptoms and observations of ankle and foot pain. He is competent to report that he was exposed to cold water in service. Here, the STRs show that the Veteran's foot and left ankle disabilities were acute, transitory, and resolved during service. Although the Veteran complained of pain during service, arthritis was not noted, manifest, or diagnosed during service or within one year of separation. The most probative evidence is the STRs and VA examinations establishing a remote onset of pathology regarding the Veteran's feet and left ankle. Later bilateral ankle x-rays in 2003 were negative, and the clinical examination was normal and there was no objective evidence of metatarsalgia of the left foot. The osteoarthritis and calcaneal spurs of the feet were first identified on x-ray in 2010. The May 2012 VA examiner opined that this indicated that the cause of degenerative joint changes is not the 1991 injury to the left foot only, but rather the stresses and use that both feet have experienced over many years. The Board assigns this high probative weight. The November 2016 VA examiner also noted in the review of available records that there was no objective evidence of complaints or diagnosis of a left ankle injury at the time of left foot injury in December 1991. In regard to the opinion of Dr. C.C.S., the opinion addresses only the left lower extremity. Therefore, the statement has no bearing on the right lower extremity pathology. In regard to the left lower extremity, the doctor does attribute pathology to the in-service injury. However, he fails to explain why examinations in X-ray examinations in 1993 and 2003 would be normal. Although we have accorded the opinion significant probative weight, it is less persuasive than the VA opinions and the contemporaneous records. The Veteran's own opinion warrants less probative value (regarding identifying a potential chronic disease entity) when compared with the objective evidence of record. Despite a period of in-service complaints of pain, the evidence establishes that he did not have arthritis during service, and there is no evidence of arthritis within one year of separation. The Board has considered his statements regarding continuity. However, the record establishes that he did not have arthritis during service or within one year of separation and the remote onset of arthritis is unrelated to in-service events. Similarly, to the extent that he asserts that he has residuals of cold exposure, such theory is unsupported by competent evidence. The medical evidence as to etiology is far more probative and credible than his statements of continuity. In sum, the most probative evidence shows that any foot and ankle injury in service was acute and resolved. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, service connection for a right foot, left foot, and left ankle disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right foot disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs