Citation Nr: 18154604 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 13-02 085 DATE: December 4, 2018 ORDER Entitlement to service connection for a right foot disorder is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current right foot disorder is causally related to an event, injury, or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to March 1977. 1. Entitlement to service connection for a right foot disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), when a chronic disease is not present, a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). The Veteran contends that service connection is warranted for a right foot disorder, to include tinea pedis, pes planus, and degenerative arthritis. It is not in dispute that the Veteran suffers from these conditions. What must be resolved is whether his current disability is etiologically related to service. The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a right foot disorder. There are several notations in the Veteran’s service treatment records (STRs) for complaints of right foot problems. See October 1976 STR (Veteran stubs right third toe and subsequently gets an infected abrasion); February 1977 STR (Veteran reports sores between toes and is prescribed a topical cream for tinea with wet, macerated skin). The earliest clinical record of a right foot disability following service is a July 1995 treatment record, almost 20 years after separation from service. While not dispositive, the lapse of time between separation from active service and the earliest documentation of a claimed disability is a factor that weighs against the Veteran’s claims for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, as there is no evidence that the Veteran was diagnosed with or suffered from arthritis in his right foot within one year of separation from service, presumptive service connection is not warranted. 38 C.F.R. § 3.307, 3.309. Likewise, the medical evidence of record is against a finding that the Veteran’s right foot disorder is causally related to an event, injury, or disease in service. The Veteran was afforded VA examinations in June 2011 and January 2018. Both examination reports constitute negative evidence weighing against the Veteran’s claim, with the January 2018 report having significantly greater probative value on account of the rationale for the opinion provided. The June 2011 VA examiner opined that the Veteran’s right foot pes planus and degenerative arthritis were less likely than not due to, or related to, his in-service foot conditions; however, no rationale was offered for this opinion. During the January 2018 VA examination, the Veteran had confirmed diagnoses of tinea pedis, right foot pes planus, plantar fasciitis, and degenerative arthritis. The examiner stated that the single instance of in-service tinea pedis with wet macerated skin in February 1977 was completely unrelated to his current tinea pedis as the condition is extremely common and preventable with good foot hygiene. The examiner also opined that the Veteran’s other right foot disorders, to include pes planus, plantar fasciitis, and degenerative arthritis, were less likely than not related to service because none of the treatment that the Veteran received in service related to these diagnoses. In addition, the examiner noted that the Veteran made sixteen sick call visits during his nine months of active duty service; therefore, it is reasonable to assume that he would have reported any symptoms if he was suffering from one of these conditions. In making its determination, the Board has also considered the Veteran’s own statements, made in support of his claim. At the outset, the Board notes that, in this case, the Veteran has not demonstrated any specialized knowledge, training, credentials, or expertise to indicate he can render a competent medical opinion. Although lay persons are competent to render opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran’s right foot disorder falls outside the realm of common knowledge of a lay person, as it concerns complex orthopedic and skin conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), n. 4 (lay persons not competent to diagnose cancer). While the Veteran is competent to report his pain, his lay contentions as to etiology are outweighed by the aforementioned medical opinion, rendered by a trained medical professional and based upon a claims file review and an examination of the Veteran, with full consideration of his lay contentions. Accordingly, in this case, the Board finds that the elements of service connection have not been met. The probative and competent medical evidence does not demonstrate the presence of a right foot disorder in service, as explained above. Furthermore, the Board also finds that presumptive service connection is not warranted because there is no evidence that the Veteran was diagnosed with or suffered from arthritis in his right foot within one year of separation from service. 38 C.F.R. § 3.307, 3.309. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for a right foot disorder, is denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain is remanded. In a July 2017 decision, the Board denied the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected right knee strain. The Veteran subsequently appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted the parties’ Joint Motion for Partial Remand (JMR), finding that an August 2015 VA examination did not meet the standards set forth in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court vacated the Board’s decision and remanded it for further development and readjudication. As such, the Board finds that a new VA examination is warranted to conduct joint testing in accordance with Correia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Any decision with respect to the remanded increased rating claim may affect the claim for TDIU. Therefore, the TDIU issue must be remanded because the claims are inextricably intertwined and must be considered together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims as well as any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. After completing the requested development, afford the Veteran a VA orthopedic examination to assess the severity of his right knee strain. A copy of this remand and all relevant medical records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire format must be addressed. The examiner should report all signs and symptoms necessary for rating the Veteran’s right knee strain under the rating criteria. The examiner should provide the range of motion in degrees of the right knee. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, where possible. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In assessing the current nature and severity of the Veteran’s right knee strain, the examiner is asked to describe all symptoms, as well as the degree of severity of the disability. Finally, the examiner must address the degree to which this disability, along with the Veteran’s service-connected lumbar strain, affect his ability to secure and follow a substantially gainful occupation. All opinions must be supported by a complete rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel