Citation Nr: 18142859 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 10-00 471 DATE: October 17, 2018 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a low back disability, to include lumbar spine degenerative disc disease (DDD), including as secondary to a right and/or left foot disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has current right or left foot disabilities due to a disease or injury in service, to include specific in-service event, injury, or disease. 2. As service connection has not been awarded for right or left foot disability, service connection for the Veteran’s current low back disability cannot be awarded on a secondary basis, and the disability is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for left foot disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a low back disability, including as secondary to service-connected foot disability, are not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to December 1977. He and his spouse testified at an August 2012 Board hearing. This matter is on appeal from a February 2007 rating decision. The Board remanded the claims on appeal for additional development in November 2012 and September 2014. While the Veteran was previously represented in this appeal by a private attorney, his attorney withdrew from representation in January 2016; the Veteran is currently unrepresented. Service Connection The Veteran has attributed his claimed bilateral foot disabilities to injuries sustained during service when he suffered stress fractures of the third metatarsal of each foot. He attributed the stress fractures to his duties as an infantryman, including performing long marches with heavy equipment. The Veteran has specifically asserted that his claimed back disability was caused or has been aggravated by his claimed foot disabilities. 1. Service connection for right and left foot disabilities The question for the Board is whether the Veteran has a current right and/or left foot disability that began during service or is at least as likely as not related to an in-service event, injury, or disease. The Board concludes that, although the Veteran appears to have current foot disability consisting of bilateral plantar fasciitis and that the evidence shows that he suffered stress fracture of the third metatarsal of each foot during service, the preponderance of the evidence weighs against finding that the Veteran’s plantar fasciitis began during service or is otherwise related to an in-service event, injury, or disease. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d). Although the evidence indicates that the Veteran may also have bursitis of the ankles, issues of entitlement to service connection for ankle disability are not on appeal before the Board. A March 1993 private treatment report, dated several years prior to the current appeal period, showed that the Veteran had a previously noted fracture at the base of the fourth metacarpal bone, which showed interval healing with some deformity. Deformity was also seen in the fifth metacarpal bone, suggestive of previous trauma. The medical evidence does not indicate that the Veteran complained of additional foot pain until April 2004, at which time a private treatment report noted that he complained of having stinging on the soles of his feet. VA treatment records reveal that he sought treatment with a complaint of painful feet in May 2006, during the current appeal period. The only assessment at that time was bilateral ankle instability. Although the Veteran reported for private treatment with complaints of foot pain in April 2010, x-rays of his left foot showed no fractures. The treating podiatrist noted that the Veteran had multiple issues within his feet, but that his chief complaint and concern was the ankle. An assessment of plantar fasciitis was apparently made later, during the course of VA treatment in March 2013. Taking into consideration the Veteran’s more contemporaneous complaints of foot pain beginning in approximately April 2004, these manifestations did not appear until nearly 27 years after the Veteran’s separation from service. Moreover, while residual ankle fracture was noted in March 1993, April 2010 x-rays, during the current appeal period, showed not fractures. Additionally, the Veteran was afforded a VA examination of his feet in January 2007, in order to obtain an opinion as to the nature and etiology of current foot disability. While the examiner noted that the Veteran suffered from stress fractures during service in 1977, he further noted that the stress fractures had improved. After examination of the Veteran, the examiner determined that there was no current foot disability found. Additionally, x-rays taken of the right foot in April 2006, prior to the examination, revealed negative results. The Board remanded the Veteran’s claim in September 2014 in an attempt to schedule the Veteran for a new VA examination of his feet. The Veteran contacted VA in January 2017, however, and reported that he did not wish to appear for any additional VA examinations. Nonetheless, as he appeared to have current foot disability during the appeal period, the Board sought an additional medical opinion as to the etiology of foot disability from an orthopedic foot and ankle surgeon (specialist) through VA’s Veterans Health Administration (VHA). In a June 2018 opinion, the VHA specialist indicated that he reviewed the Veteran’s record and that the Veteran’s foot disability appeared to mainly stem from plantar fasciitis. The VHA specialist noted that plantar fasciitis was a common condition and that the causes were not well understood. He noted that to his expert knowledge, there was no association between metatarsal stress fractures and plantar fasciitis. Thus, the VHA specialist opined that given the course between the Veteran’s service, and his diagnosis, many years later, it was unlikely that current foot condition had its clinical onset during active service, or was the sequela of an injury sustained during service. Where the VHA specialist relied on a lack of association between the Veteran’s plantar fasciitis and in-service metatarsal stress fractures, and an onset of apparent plantar fasciitis many years after the Veteran’s separation from service, the Board finds that the VHA surgeon’s opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the evidence of record, including the VHA surgeon’s opinion, the Board cannot make a finding that current right or left foot disability is at least as likely as not etiologically related to the Veteran’s active service, to include metatarsal stress fractures incurred during service. Although the Veteran reported during his August 2012 Board hearing that he has had problems with his feet since service, and he is competent to report having experienced symptoms of foot pain since service, he is not competent to provide a diagnosis of current foot disability, to determine that his current symptoms were manifestations of any specific foot disability, past or present, or to opine as to the etiology of current plantar fasciitis, as such requires a medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In sum, competent probative evidence of record does not indicate that current disability of either the right or left foot, assessed as bilateral plantar fasciitis, at least as likely as not had its onset during service or is the otherwise the result of an in-service event, injury, or disease. As such, there is no basis for an award of service connection for such foot disability. As the preponderance of the evidence is against the claims for service connection for the right and left foot disabilities, the benefit-of the doubt doctrine is not for application, and the claims for service connection must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Service connection for a low back disability, including as secondary to a bilateral foot disability The Veteran has not asserted that his claimed back disability is directly the result of injury or disease incurred during active service, but rather, he has contended that the back disability was caused or has been aggravated by his claimed foot disabilities. Thus, the primary question for the Board is whether he has a current back disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected foot disability. The Board concludes that, while the Veteran has a current DDD diagnosis, the preponderance of the evidence is against finding that his DDD is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Here, the Board has determined that service connection is not warranted for either the Veteran’s clamed right or left foot disabilities. Absent an award of service connection for a primary disability upon which a secondary service connection claim is based, service connection cannot be awarded for the secondary disability. Id. Thus, the Board simply cannot make a finding that service connection is warranted for a back disability as secondary to right and left foot disabilities. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s back disability is related to an in-service event, injury, or disease. 38 U.S.C. §§ 1131; Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are devoid of any indication that he suffered from, complained of, or was treated for, any back pain or back disability during service; nor has the Veteran contended as much. Due to such absence of an in-service event, injury, or disease involving the Veteran’s low back, service connection on a direct basis may not be awarded. In this regard, the Board notes that the medical evidence with respect to when the Veteran’s back disability first became manifest is somewhat contradictory. In the report of a January 2007 VA examination of the Veteran’s spine, the examiner indicated that the Veteran had alleged that the back disability began in 1980. The examiner noted, however, that the Veteran’s back problems appeared to have started after a fall down the stairs in 1995. Meanwhile, the Board notes that the first evidence of treatment for back pain of record, appears to be in a January 1995 private treatment report which noted his complaint of back pain. Previously, a December 1987 x-ray report noted, inter alia, normal back findings, though the reason for the x-rays was not clear. Continuing back pain was noted in a January 2000 private treatment report, and a September 2001 private hospital discharge report noted that the Veteran had undergone a lumbar laminectomy. Ongoing private and VA treatment records reflect the Veteran’s continuing complaints of back pain and treatment for back disability. Notably, however, none of the medical or lay evidence provides any indication that a back disability is the result of an event, injury, or disease during the Veteran’s active service. In sum, service connection for the Veteran’s DDD is not warranted as secondary to right or left foot disabilities where service connection has not been found to be warranted for the underlying foot disabilities. Additionally, neither the lay nor medical evidence of record provides any indication or assertion that the Veteran’s back disability had its etiological onset during service or is otherwise the result of an in-service event, injury, or disease. As such, there is no basis for an award of service connection for a low back disability. As the preponderance of the evidence is against the claim for service connection for a low back disability, the benefit-of the doubt doctrine is not for application, and the service connection claims must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet App. 49; 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel