Citation Nr: 18144318 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-33 299 DATE: October 24, 2018 ORDER Entitlement to service connection for a left foot disability is denied. FINDING OF FACT The preponderance of competent and credible evidence weighs against finding that the Veteran’s current left foot disability manifested within a year of his separation from active duty service, or was incurred in or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to April 1974, and in the National Guard from April 1974 to February 1975, October 1975 to September 1978, and February 1987 to February 2001. In the April 2016 statement of the case, the Agency of Original Jurisdiction (AOJ) denied claims to reopen entitlement to service connection for left and right ankle disabilities and for hearing loss, and denied entitlement to service connection for sleep apnea, peripheral neuropathy of the left and right lower extremities, disabilities of the left and right feet, diabetes mellitus, and a mental health disorder. In June 2016, the AOJ received the Veteran’s VA Form 9 which indicated he only wished to appeal the denial of service connection for a left foot disability. Accordingly, the Board finds the Veteran did not perfect an appeal as to the nine other issues and thus, those issues are not currently before the Board. 38 C.F.R. §§ 20.200, 20.202. In a March 2016 rating decision, the AOJ denied entitlement to compensation under 38 U.S.C. § 1151 for pes planus with failed triple arthrodesis, pronation deformity, left foot. The evidence of record does not indicate that VA received a notice of disagreement with the March 2016 rating decision, and thus that issue is not currently before the Board. 38 C.F.R. §§ 20.200, 20.201, 20.302(a). Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As will be discussed in detail below, the Board finds the competent evidence of record does not indicate an event, injury, or disease during active duty service or in the line of duty during National Guard service related to the Veteran’s left foot disability. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for a left foot disability. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). Entitlement to service connection for a left foot disability The Veteran contends that his current left foot disability is related to his military service. See June 2016 VA Form 9; January 2014 informal claim. First, the medical evidence of record indicates that during the appeal period, left foot disabilities to include pes planus, posterior tibial tendonitis, hindfoot valgus, planus/rocker bottom deformity, osteoarthritis, and failed triple arthrodesis with severe pronation deformity have been diagnosed. See, e.g., March 2016 VA examination report; April 2015 VA left foot x-ray report; July 2014 VA podiatry outpatient note; March 2014 VA podiatry outpatient note. The Veteran’s service treatment records from his active duty service and his National Guard service do not include any complaints, diagnoses, or treatment related to his left foot. The first x-ray evidence of record indicating arthritis in the left foot is dated in June 2007. See June 2007 VA urgent care note and addendum. Accordingly, the Board finds the preponderance of competent and credible evidence weighs against finding that the Veteran’s left foot arthritis manifested within one year following his separation from service. Therefore, service connection cannot be established on a presumptive basis. See 38 C.F.R. § 3.307. In June 2001, VA received summaries of the Veteran’s chart from Idaho Orthopaedic & Sports Clinic. These summaries indicate that the Veteran was treated for left heel pain with assessments of left foot plantar fasciitis in March 1999 and April 1999. During a September 2005 VA podiatry consultation, the Veteran reported wearing orthotics for the previous five years due to foot pain from flat feet. The term “active service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty with the National Guard of any State, and INACDUTRA includes duty (other than full-time duty) with the National Guard of any State, under sections 316, 502, 503, 504, or 505 of title 32 of the United States Code, or the prior corresponding provisions of law. 38 U.S.C. §§ 101(22)(C), (23)(3); 38 C.F.R. §§ 3.6(c)(3), (d)(4). Although the medical evidence of record indicates the Veteran received treatment for left foot plantar fasciitis and flatfoot during his National Guard service, the Board finds the Veteran’s service treatment and personnel records do not indicate the Veteran suffered a left foot disease or injury incurred or aggravated in the line of duty during his National Guard service. Further, neither the Veteran nor his representative has contended that the Veteran suffered a left foot disease or injury in the line of duty during his National Guard service, or otherwise specified the reason the Veteran believes his current left foot disability is related to his military service, other than generally noting the 1999 left foot complaints. See August 2016 representative statement. Further, the Veteran denied foot trouble in a January 2000 Report of Medical History, and a January 2000 examination report indicated the Veteran’s feet were normal upon examination. The Board has considered the lay evidence offered by the Veteran. This includes his contention that his current left foot disability is related to his military service. In general, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the question of whether the Veteran’s current left foot disability is related to his military service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran’s military service is related to his current left foot disability is not within the realm of knowledge of a non-expert, given the lack of left foot complaints, treatment, or diagnoses during active duty service, the lack of lay or medical evidence regarding a left foot disease or injury incurred or aggravated in the line of duty during the Veteran’s National Guard service, and the January 2000 Report of Medical History and examination report indicating no left foot complaints or findings. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that his nexus opinion in this regard is not competent evidence and therefore is not probative of whether his current left foot disability was caused by his military service. Here, there is no competent evidence or opinion of record suggesting that there exists a medical nexus between the current left foot disability and the Veteran’s military service. Accordingly, the Board finds the preponderance of competent and credible evidence weighs against finding that the Veteran’s current left foot disability incurred in or was caused by his military service, and service connection cannot be established. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). (CONTINUED ON NEXT PAGE) For the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim of entitlement to service connection for a left foot disability. The benefit of the doubt doctrine is therefore not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel