Citation Nr: 18144450 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-21 918 DATE: October 24, 2018 ORDER The claim of entitlement to service connection for a low back disability is denied. The claim of entitlement to service connection for a right foot/ankle disability, claimed as five hairline fractures of the right foot, is denied. FINDINGS OF FACT 1. The Veteran’s low back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s separation from service. 2. The Veteran’s right foot/ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s separation from service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for a right foot/ankle disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from February 1971 to November 1972. On the Veteran’s January 2015 claim, the Veteran stated that he was seeking service connection for five hairline fractures of the right foot. Later, in his February 2016 notice of disagreement, the Veteran also noted that he twisted his right ankle and that his right ankle was smaller than his left. Accordingly, the Board has expanded and recharacterized the Veteran’s claim as a claim for entitlement to service connection for a right foot ankle disorder. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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 opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339 ), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for a low back disability and a right foot or ankle disability. The Veteran asserts that his current low back disability and right foot/ankle disabilities are related to his active duty service. He contends that he injured his low back and right foot/ankle during basic training in March 1971 when he jumped 4.5 feet while carrying a full pack and M-16 rifles. He contends that he initially thought he just injured his right ankle, but that x-rays taken at that time revealed five hairline fractures in his right foot. The Veteran’s service treatment records include an October 1970 pre-induction examination showing a diagnosis of pes planus. Service treatment records are otherwise silent as to any complaints of or treatment related to the low back or right foot/ankle. A March 1971 service treatment record showed that the Veteran was treated for a twisted left ankle and was sent for an x-ray. An x-ray of the left ankle did not reveal any abnormalities. April 1971 service treatment records documented left ankle complaints. The September 1972 separation examination indicated that his feet, lower extremities, and spine were normal. October 2008 post-service VA treatment records showed that the Veteran visited his primary care physician due to complaints of right posterior heel pain. He reported that he was injured during an escalator accident about eight years ago, when someone landed on the back of his right leg. Since then he suffered from radicular symptoms with intermittent periods of pain, numbness, and weakness of the right lower extremity. The assessment was insertional achilles tendinitis and right calcaneus with retrocalcaneal exostosis. October 2009 VA treatment records noted a longstanding history of intermittent back pain from herniation of L3/L4 and L5/S1 after an accident in an elevator, per the Veteran’s report. He recently experienced new onset pain during a trip that involved multiple plane rides. He described pain in the right hip, thigh, and ball of the foot, as well as weakness with dorsiflexion of the right foot and toes. He stated that he experienced similar weakness with another exacerbation in 2000. The assessment was back pain with symptoms. A February 2010 podiatry consult showed that the Veteran was treated for right heel pain. He had a history of plantar fasciitis and Achilles tendinitis. X-rays showed dorsal and plantar heel spurs and osteoarthritis. He continued to report an old L4-L5 injury which caused occasional pain and constant weakness in his right foot. In October 2014, the Veteran presented with pain in the back and right left posterior thigh following a motor vehicle accident in which his car was totaled. Upon consideration of the evidence above, the Board finds that the preponderance of the evidence is against service connection for a low back disorder and a right foot/ankle disorder. First, the Board makes no findings as to whether the Veteran currently suffers from a low back disability or a right foot or ankle disability. As detailed above, VA treatment records show complaints and treatment for low back and right foot and ankle disabilities from 2008 to 2014. These records, however, pre-date the Veteran’s claims for service connection, and are not entirely clear on diagnoses or pathology for the claimed conditions. As shown below, the Board is deciding these claims on other bases, so it declines to make any findings as to evidence of current disabilities at this time. Turning to the in-service incurrence prong of the service connection framework, there is no competent and credible evidence of an in-service incurrence of either claimed condition. Again, pes planus was noted on the Veteran’s preinduction examination, but there are no other complaints of or treatment for this condition during his active service. All of the evidence of record points to the Veteran injuring his left ankle – rather than his back or right ankle or foot – in March 1971. The Veteran specifically contends that he was treated for his back and right foot and ankle disabilities as a result of a March 1971 injury, but this contention is not supported by the records. Indeed, in his February 2016 notice of disagreement, the Veteran contended that X-rays at the time showed “five hairline fractures” of his right foot and that he was diagnosed as suffering from low back pain that radiated down his leg. The Veteran’s service treatment records appear to be complete, and they accurately reflect the treatment that he underwent for various complaints. If the Veteran were to have suffered the injuries he contends he suffered to his low back and right foot and ankle in-service, it would be expected to see treatment records for these injuries or to see their residuals reflected on the Veteran’s September 1972 separation examination. Because the records are silent as to any such injuries, treatment, or residuals, the Board finds the Veteran’s statements (and those of his family alleging in-service incurrences of his claimed disabilities) to lack credibility. The in-service incurrence criterion is not met for either claim. Further, there is no competent evidence linking any possible current low back and right foot or ankle disabilities to the Veteran’s active service. VA treatment records show complaints regarding the Veteran’s low back and right foot and ankle, but the Veteran attributed these disabilities to post-service accidents or stated that they had onsets long after his active service. Significantly, the October 2008 and October 2009 VA treatment records show that his symptoms started following an escalator or elevator injury in 2000. He also reported low back symptoms following a motor vehicle accident in October 2014. To the extent that the Veteran and his family members attribute any current low back and right ankle or foot disabilities to his active service, the Board finds that they are not competent to do so. Even if the Board found these statements from the Veteran and his family members to be competent, the Board does not consider them credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds such statements to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords no probative weight to such contentions. As noted above, in statements made to VA treatment providers he stated that he injured his back and right foot/ankle in an elevator/escalator accident in 2000 and that his symptoms continued since then. In October 2014, he reported back pain following a motor vehicle accident. Notably, the VA treatment records did not indicate that the Veteran reported low back pain or right foot/ankle pain since service. Therefore, the Veteran’s current statements, made in connection with his pending claim for VA benefits that low back and/or right foot/ankle disorders were due to an in-service injury, are inconsistent with the contemporaneous evidence and, therefore, are not credible. Accordingly, service connection is not warranted for a low back and right foot/ankle disorder. 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 low back and/or right foot disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel