Citation Nr: 18147145 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 12-00 209A DATE: November 5, 2018 ORDER Entitlement to service connection for a bilateral foot disorder, to include as secondary to service-connected diabetes mellitus, is denied. FINDING OF FACT The most probative evidence of record is against a finding that the Veteran’s current bilateral foot disorder arose in service or for years thereafter, is related to service, or was caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to June 1968 and from July 1970 to November 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board granted service connection for diabetes mellitus and remanded the present claim for further development. Entitlement to service connection for a bilateral foot disorder, to include as secondary to service-connected diabetes mellitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. The Board notes the Veteran’s service treatment records (STRs) are not complete. STRs dating from November 1964 to June 1968 are associated with the claims file; however, records from July 1970 to November 1972 are not. The Board acknowledges its heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision” when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Id. The Veteran seeks service connection for a bilateral foot disability, to include as secondary to his service-connected diabetes mellitus. As an initial matter, the Board acknowledges the Veteran has been diagnosed during the course of the appeal with bilateral foot disorders that include pes cavus, heel spurs, ganglion cysts, degenerative joint disease and tinea pedis. Thus, the question becomes whether his current bilateral foot disability is related to service or his service-connected diabetes mellitus. The Veteran had two periods of service. For the first period, his November 1964 entrance and June 1968 separation examinations noted normal feet and lower extremities; he also denied foot trouble in his November 1964 entrance report of medical history. As discussed above, STRs for the second period of service are not of record. A May 1967 STR indicates complaints of foot swelling and a sensation of needles shooting through the foot and a recommendation of arch cushions. No other complaints or treatment pertaining to the foot were noted during service. Post-service, the first medical evidence documenting foot complaints is decades after discharge. An April 2007 private medical record indicated neuropathic symptoms of his feet and legs. A July 2012 VA treatment record indicated treatment for tinea pedis. An April 2014 MRI revealed right foot borderline pes cavus; mild diffuse soft tissue swelling, borderline hallux valgus, and mild tailor’s bunions. In April 2014, the Veteran underwent surgery for the right foot ganglion cyst; at that time, the Veteran reported a four-month history of foot pain causing his foot to burn; examination revealed tenderness in the medial right foot. A November 2016 MRI revealed a right foot ganglion cyst, plantar fasciitis, mild osteoarthritis of the foot and foot muscular atrophy. The Veteran underwent a VA examination in November 2009. The Veteran reported his foot problems began during service in 1967 when he complained of swelling of his foot and needle-like sensations, that he had been a diabetic since 1967, was diagnosed with neuropathy in the early 1980’s and now had a sensation of walking on ball bearings and pain and burning of the feet; he reported his symptoms have progressively worsened. He reported bilateral foot pain and swelling while standing, walking and at rest, weakness while standing and walking, difficulty standing for more than a few minutes and walking more than 100 feet. He indicated he used a cane and corrective shoes for neuropathy and was prescribed medication. The examination revealed no evidence of swelling, instability or weakness; and evidence of painful motion with ambulation, tenderness and abnormal weight bearing. The examiner diagnosed bilateral heel spurs and pes cavus with limitation of ankle dorsiflexion and loss of sensation to midfoot, as shown by x-rays. Following examination of the Veteran and review of the claims file, the examiner, a nurse practitioner, opined the bilateral foot conditions were not permanently aggravated by or related to the Veteran’s in-service complaints of swelling and tingling of the foot. She concluded the Veteran had one recorded complaint thirty years ago of swelling and burning in the foot, there were no records confirming a chronic foot condition during service, and the Veteran had a long history of diabetes and diabetic neuropathy of the feet, which were risk factors for pes cavus. A March 2018 VA examiner, a physician, provided negative opinions on direct and secondary service connection. During the examination, the Veteran reported he had foot pain in service and was given medication for relief, that he now had bilateral foot pain when walking, and that he had diabetes for ten years with diabetic neuropathy. Upon examination, the examiner found bilateral hammer toes, acquired pes cavus with all toes tending to dorsiflexion, and shortened plantar fascia with limitation of dorsiflexion at the ankle. He diagnosed bilateral pes cavus, heel spurs, ganglion cysts and degenerative joint disease, as shown by x-rays; he found no fungal infection (tinea pedis) on examination. The examiner opined it was less likely than not that the Veteran’s bilateral foot disorder had its onset in service or was otherwise related to or aggravated by service. He also opined it was less likely than not that the bilateral foot disorder was caused or aggravated by his service-connected diabetes mellitus. The examiner explained that pes cavus is high arch that puts excessive weight on the ball and heel of the foot and can be hereditary or acquired, and that neuromuscular diseases can cause muscle imbalances that lead to elevated arches; further, he stated multiple theories have been proposed as the cause of pes cavus, including extrinsic and intrinsic muscles imbalance. The examiner concluded that while the Veteran had sensory neuropathy due to diabetes, he did not have motor neuropathy or any neuromuscular diseases; rather, the Veteran’s bilateral pes cavus, heels spurs, degenerative joint disease and ganglion cysts were secondary to degenerative changes. The Board notes the Veteran is already service connected for neuropathy in the lower extremities related to diabetes. Upon review of the evidence, the Board finds the opinion of the March 2018 examiner to be entitled to greatest probative weight. The examiner reviewed the entire claims file and medical history, examined the relevant facts and provided a rationale for the conclusions reached that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the 2009 examiner noted that diabetes was a risk factor for pes cavus, that examiner, a nurse practitioner, did not specifically opine the Veteran’s pes cavus was due to diabetes or provide other rationale for the conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Conversely, the 2018 examiner, as a physician, provided a detailed rationale, and has greater education concerning medical matters. Accordingly, the Board finds the 2018 opinion to be entitled to greatest probative weight. The Board acknowledges the Veteran’s assertions that his current bilateral foot disability is linked to his service and service-connected diabetes mellitus; however, the Veteran, as a lay person, has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the question of whether his bilateral foot disability is related to service or his service-connected diabetes mellitus is a matter not capable of lay observation and requires medical expertise to determine. As such, the Veteran’s opinion is not competent medical evidence. The Board finds the 2018 VA examiner’s opinion significantly more probative than the Veteran’s lay statements. In summary, the preponderance of competent and probative evidence is against finding the Veteran’s current bilateral foot disability arose in service or that arthritis arose within a year of discharge from service. Additionally, the preponderance of competent and probative evidence is against a finding that the current disability is related to service, or was caused or aggravated by his service-connected diabetes mellitus. Accordingly, service connection is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel