Citation Nr: 18139852 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-04 563 DATE: October 1, 2018 ORDER Entitlement to service connection for a bilateral foot disorder is denied. FINDING OF FACT The Veteran’s bilateral foot disorder is not caused by or otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disorder have not been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In June 2015, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. This matter was remanded by the Board in October 2015 for additional development. Such development has been completed and the matter returned to the Board for appellate consideration. After reviewing the developmental actions taken by the Agency of Original Jurisdiction (AOJ), the Board finds there was substantial compliance with the December 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board recognizes that the Veteran has perfected his claim for increased compensation for an acquired psychiatric disorder. The Veteran has requested a Board hearing on that issue and the record shows the RO is undertaking action on that request. In light of the pending development, that issue will not be addressed in this decision, but will be the subject of a later Board decision. Lastly, although a review of the record reflects additional VA medical evidence was added to the record subsequent to an April 2016 supplemental statement of the case without waiver of AOJ consideration, the evidence is essentially cumulative of the information previously considered, i.e., it did not relate to an unestablished fact. As such, no further action is required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Entitlement to service connection for a bilateral foot disorder Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). The current disability requirement is satisfied when a veteran “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). 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) (2018). Discussion The record in this case is clear as to whether the Veteran currently has a bilateral foot disability. Indeed, report of the May 2013 VA examination reflects, in pertinent part, diagnoses of onychocryptosis, i.e., ingrown toenails, and degenerative joint disease, first metatarsophalangeal joint of the bilateral feet. Additionally, the Veteran’s service treatment records (STRs) reflect the Veteran sought treatment for his left and right foot on at least one occasion in service. Thus, the central issue that must be resolved at this time is whether the Veteran’s current disability was caused by, a result of, or otherwise etiologically related to service. Based on a review of the evidence, the Board finds that entitlement to service connection for a bilateral foot disorder is not warranted in this case because the evidence fails to show a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. In making this finding, the Board accords significant probative weight to the VA medical opinion obtained in March 2016, in conjunction with the May 2013 VA examination. The record reflects the examiner reviewed the Veteran’s pertinent medical history, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and, therefore, the examination is the most probative evidence regarding the nature and etiology of the Veteran’s claimed bilateral foot disorder. Report of the March 2016 medical opinion reflects, in pertinent part, the examiner’s opinion that each of the Veteran’s current bilateral foot disorders are less likely than not (less than 50% probability) incurred in or caused by military service. In so concluding, the examiner considered the lay evidence of record. For instance, the examiner acknowledged the Veteran’s statements that he had “a lot of problems with ingrown toenails . . . [and] was constantly seen by several corpsmen who would cut away the [ingrown] nails.” The Veteran has also expressed his belief that his “ingrown toenails come from being in the field so much with wet boots and wet socks that caused his feet to crack and get sore.” Further, the Veteran indicated that he continued to experience ingrown toenails following service, but that he did not seek treatment for his bilateral foot disability. Rather, he indicated he “just kinda [sic] did the best [he] could with them” and cut them away himself. To that extent, the examiner indicated that medical literature does not support a causal relationship between wet boots and socks and the development of ingrown toenails. Next, the examiner noted that the removal of ingrown toenails, albeit a minor surgery, is a highly painful process requiring local anesthesia in a highly sterile environment. As such, the Veteran’s assertions that he “was constantly seen by several corpsmen who would cut away the [ingrown] nails,” and that following service he would cut them away himself are highly implausible. The examiner highlighted that STRs dated in August 1976 reflect the Veteran sought treatment, i.e., the Veteran’s nail was trimmed under local anesthesia, which appeared to be acute and resolved. In particular, the examiner highlighted that the Veteran’s physical examination conducted 10 months later was found to be normal. In light of the foregoing, the examiner indicated that the available medical evidence was entitled to significantly more probative weight than the Veteran’s vague, unsupported contentions. The examiner also indicated that the Veteran’s symmetric mild first metatarsophalangeal joint degenerative changes are more consistent with the natural progression of this condition over time in light of the Veteran’s age and significant body habitus, rather than any acute arch pain experienced and/or documented in service. The examiner noted that the first evidence of a foot disability or associated symptomatology, other than the lay statements by the Veteran, are medical treatment records dated in May 2013, i.e., more than three decades following service. This, in conjunction with the June 1977 separation examination noting normal bilateral feet, undermines the Veteran’s reported chronicity of the claimed disability. Parenthetically, the Board notes that the absence of post-service findings, diagnoses, or treatment for decades after service is one factor that tends to weigh against a finding of continuous symptoms after separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board also recognizes the medical evidence of record describing the Veteran’s bilateral foot disability as having onset in service. However, the Board finds that this statement neither invalidates the March 2016 medical opinion, nor does it create equipoise. Rather, it simply restates the purported history by the Veteran. No further opinion or rationale is provided pertaining to a nexus is provided. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for bilateral foot disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to him. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel