Citation Nr: 18157241 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 11-16 499 DATE: December 12, 2018 ORDER Service connection for bilateral pes planus, big toe bunions, arthritis, hammer toes, and hallux valgus is denied. Service connection for fibromyalgia is denied. Service connection for a right knee disorder, status post right total knee replacement is denied. Service connection for low back degenerative disc disease (DDD), degenerative joint disease (DJD), spinal stenosis, and status post spinal fusion is denied. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus, big toe bunions, arthritis, hammer toes, and hallux valgus did not originate in service, were not caused by any in-service injury, disease, disorder, or event, and arthritis did not manifest to a compensable degree within one year of service separation. 2. The Veteran’s fibromyalgia did not originate in service, was not caused by any in-service injury, disease, disorder, or event, and was not caused or aggravated by any service-connected disorder. 3. The Veteran’s right knee disorder, status post right total knee replacement, did not originate in service, was not caused by any in-service injury, disease, disorder, or event, was not caused or aggravated by any service-connected disorder, and arthritis did not manifest to a compensable degree within one year of service separation. 4. The Veteran’s low back DDD, DJD, spinal stenosis, and status post spinal fusion did not originate in service, were not caused by any in-service injury, disease, disorder, or event, were not caused or aggravated by any service connected disorder, and arthritis did not manifest to a compensable degree within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus, big toe bunions, arthritis, hammer toes, and hallux valgus have not been met. 38 U.S.C. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 2. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326(a) (2017). 3. The criteria for service connection for a right knee disorder, status post right total knee replacement have not been met. 38 U.S.C. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a) (2017). 4. The criteria for service connection for low back DDD, DJD, spinal stenosis, and status post spinal fusion have not been met. 38 U.S.C. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from August to December 1984. In January 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. In September 2017, the Board denied service connection for all four issues on appeal. The Veteran subsequently appealed to the United States Court of Appeals for Veterans’ Claims (Court). In April 2018, the Court granted the Parties’ Joint Motion for Remand (JMR); vacated the September 2017 Board decision; and remanded the Veteran’s appeal to the Board. The Court vacated the Board’s decision because the Board failed to consider favorable evidence and arguments received by VA in July 2017, including a private medical opinion. A discussion of the documents received in July 2017 is included in the decision below. Service Connection 1. Entitlement to service connection for a bilateral foot disorder, to include pes planus, big toe bunions, arthritis, hammer toes, and hallux valgus. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for a right knee disorder, to include status post right total knee replacement. 4. Entitlement to service connection for a low back disorder, to include DDD, DJD, spinal stenosis, and status post spinal fusion. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, arthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has been diagnosed with bilateral pes planus, bilateral big toe bunions, bilateral foot arthritis, bilateral hammer toes, bilateral hallux valgus, fibromyalgia, right knee arthritis and she subsequently had a total knee replacement, and low back DDD, DJD, spinal stenosis, and she had a spinal fusion. The Veteran has asserted that her bilateral foot disorder began in service when she was treated for pes planus. The Veteran also contends that her low back and right knee disorders began in service and that her low back and right knee disorders and her fibromyalgia were caused by her bilateral foot disorder. The Veteran’s service treatment records contain no evidence of any in-service treatment for or complaints of any foot disorder, low back disorder, right knee disorder, or fibromyalgia. The evidence indicates that the Veteran’s disorders began many years after service separation. On a July 2009 Authorization and Consent to Release Information to VA form, the Veteran wrote that her knee pain began in 1990. A February 2008 private treatment record states that the Veteran had a history of low back pain since 2000. A possible diagnosis of fibromyalgia was first advanced in a September 2005 private treatment record. Private treatment records indicate that the Veteran had bunionectomies in 1998 and 1999 and there are no records of treatment for a foot disorder prior to that time. At her January 2015 Board hearing, the Veteran testified that she had foot problems during basic training. She stated that she had a mold made for her feet which caused them to bleed and that she was issued sneakers to wear in place of boots. She stated that she wore sneakers instead of boots for the duration of her military service. She stated that she was diagnosed with pes planus while in basic training and that she had deformed big toes but did not know when the deformity began. She testified that the military offered to correct her foot disorders but she was separated from service due to pregnancy before the correction could be completed. The Veteran stated that her feet were in severe pain. In March 2016, the Veteran was afforded VA foot, back, knee, and fibromyalgia examinations. The Veteran reported at the examination that her back pain began in 2009. At the Veteran’s knee examination, she reported that she her right knee pain began in 2008. At her fibromyalgia examination, the Veteran reported that she developed diffuse muscle pain and increased skin sensitivity in 2006 or 2007. The examiner opined that given the onset of many years after service separation and the lack of any treatment or complaints in service, the Veteran’s low back disorders, right knee disorder, and fibromyalgia were less likely than not caused by service. At the Veteran’s foot examination, she reported that she was diagnosed with pes planus in service and was provided custom arch supports which she contended “pushed out bunions.” The examination report states a diagnosis of bilateral pes planus in 1984 but that diagnosis was based solely on the Veteran’s report of her medical history. The examiner opined that the Veteran’s bilateral foot disorders were not caused by service because there was no indication in the Veteran’s service treatment records of any complaints of or treatment for a foot disorder. As the foot opinion was based solely lack of in-service treatment, this opinion is of no probative value. See Hensley v. Brown, 5 Vet. App. 155 (1993), Ledford v. Derwinski, 3 Vet. App. 87 (1992), Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In a July 2017 statement, the Veteran wrote that she had never had foot complaints prior to service, that her foot problems began in service, that the military issued her cement inserts for her boots, that she was told she had bunions while in service, and that she sought in-service treatment for low back pain and muscle aches throughout her body. She also reported first seeing a physician for her back complaints in 1985 after having her first child and that her knee pain began in 2003 or 2004. She indicated that she was diagnosed with fibromyalgia in 2006. In July 2017, the Veteran submitted a private opinion from her physician. The physician wrote a lengthy discussion of the facts of pes planus, bunions, and fibromyalgia as discussed in online resources, including what they are, causation, and treatment. He provided little discussion of this Veteran’s specific disorders or their relationship to service. About her feet he wrote “The Navy attempted to correct [the Veteran’s] flat feet with orthotics, but changing the biomechanics of her feet caused great pain and activated her predisposition to bunions because of her flat feet.” About her fibromyalgia he wrote “The [V]eteran had been provided with cement-mold inserts for her boots to help with her arch. This severely injured her feet, and it is as least as likely as not that she developed fibromyalgia as her body’s response to the pain in her feet.” He concluded that the Veteran developed symptomatic pes planus during service, that the Navy tried to correct the pes planus with orthotics and poorly-fitted shoes, that she complained about her boots but was not provided better-fitting ones, that the “cement orthotics and poorly fitted boots aggravated/activated ligamentous laxity and hyperpronation, causing bunions,” that the bunions caused pain and triggered fibromyalgia, and that the “distortion pattern associated with hyperpronation and its effects throughout the kinetic chain [led] to knee and low back disorders.” He later wrote that the Veteran developed pes planus during service or that her pes planus was aggravated by service and that the pes planus caused bunions, fibromyalgia, a low back disorder, and a right knee disorder. In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). In this regard, there is some evidence suggesting that the Veteran may be misrepresenting her symptoms. An October 2007 private treatment record states that blood work was normal and the clinician wrote that the Veteran “seems to have symptoms that are completely out of proportion to her physical findings and there is no doubt in my mind that she has a very serious psychiatric disease. It makes me wonder if most of her symptoms are produced by her psychiatric disease with sleep deprivation. . . .” The Veteran’s statements are not credible. Given the purported intensity of her foot pain and the need for corrective surgery, it is implausible that the Veteran would have no indications of any foot treatment from service separation in December 1984 until her bunionectomies in 1998 and 1999. Additionally, she has been inconsistent in her statements about when her symptoms and disorders began. She has stated that her back pain began in service, in 1985, in 2000, and in 2009. She has stated that her knee pain began in service, in 1990, and in 2008. The Board finds that the July 2017 private medical opinion is inadequate and of no probative value. The clinician provided a lengthy discussion of information not specific to this Veteran and her disorders. He also failed to make a definitive determination of whether her foot disorders pre-existed service. He seemed to opine both that they did and that they did not. This indicates that he was either not familiar with her medical history or was providing a variety of positive opinions in the hopes that the Board would accept one and grant service connection. The clinician’s opinion is also inadequate because his report of the development of symptoms and treatment were based on the Veteran’s self-reported assertions. The Board has already found that the Veteran’s assertion of the facts surrounding her symptoms are not credible and are inconsistent. The clinician’s assertion of the facts is further inconsistent. He reported that the Veteran developed pes planus in service which caused bunions, triggered fibromyalgia, and later led to knee and back disorders. This cannot possibly be what happened, however, given that the Veteran has reported seeking back treatment in service and in 1985, but there is no evidence of post-service foot treatment until 1998. And, given that there is no evidence of foot treatment in the many years following service separation, it is implausible that the symptoms would have been so severe as to trigger fibromyalgia and cause knee and back disorders. Lastly, he failed to address whether any or all of her symptoms or disorders were caused by pregnancy. This is especially relevant given that she has reported that her symptoms began in service or shortly thereafter, at which time she was pregnant. The Veteran submitted written statements from two friends, T.B., in October 2009, and G.W., in January 2015, and her sister, in May 2016. G.W. also submitted an updated statement in July 2017. T.B. stated that he met the Veteran 12 years prior and that she had told him about in-service foot complaints. The Veteran’s sister wrote that the Veteran “never had any problems with her feet, knees, or back but after she returned home from serving in the Navy we noticed how her mobility had changed and it was very noticeable to everyone. Upon returning home she would always complain about the pain she would feel in her feet, knees, and even her back.” G.W. stated that the Veteran had written letters to him and other friends while in service about foot pain and that she wore sneakers instead of boots due to her complaints. He said that she reported that her feet would bleed and that she “developed . . . knots on the side of her feet.” He stated that she could not wear shoes, only sandals, when she returned from service due to the damage to her feet. The statements from the Veteran’s friends and sister do not outweigh the vast evidence against the Veteran’s contentions. T.B. met the Veteran many years after service separation and his statement is based solely on the Veteran’s reports to him many years after service. The Veteran’s sister’s statement did not attribute the Veteran’s symptoms and mobility difficulty to any in-service event or injury and did not discuss whether her physical complaints were the result of her pregnancy. Although the statements from G.W. indicate that the Veteran reported foot complaints to him while she was in service, there is no adequate medical opinion stating that those complaints are the cause of the Veteran’s current foot disorders. The Veteran and G.W. are not competent to provide such an opinion as this opinion is not something that is capable of lay observation but, instead, requires medical expertise. The preponderance of the evidence is against a finding that the Veteran’s claimed disorders began in service or that arthritis manifested to a compensable degree within one year of service separation. Service treatment records contain no complaints of or treatment for knee, back, or foot disorders or fibromyalgia. The Veteran’s VA and private treatment records indicate treatment for each of her disorders began many years after service. The Veteran has provided vastly inconsistent dates of when her symptoms and disorders began including stating on many occasions that they began many years after service separation. Additionally, there is no adequate medical opinion from a competent provider stating that any of the Veteran’s disorders originated during service, were caused by any in-service event, injury, disease, or disorder, or that arthritis manifested to a compensable degree within one year of service separation. Therefore, service connection is not warranted. Although the Veteran has stated that her fibromyalgia and right knee and low back disorders were caused or aggravated by her bilateral foot disorder, she is not service connected for a bilateral foot disorder and, therefore, secondary service connection is also not warranted. The claims are denied. The Veteran has asserted that her service treatment and personnel records are incomplete. VA has made multiple requests for these records and a December 2015 email message states that all available records were associated with the file. Records were searched under the Veteran’s various other names and no additional records were found. Therefore, the Board concludes that the Veteran’s service treatment and personnel records are complete. At her January 2015 Board hearing, the Veteran testified that she was told her records were destroyed in a fire in Orlando, Florida. VA records are housed at the National Personnel Record Center in St. Louis, Missouri. That facility did have a fire in 1973 and some records were destroyed. However, the Veteran served in 1984, many years after the fire took place. The Board has no knowledge of a fire in Orlando or of records being destroyed or missing. No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Moreover, the Veteran’s account in the several relevant particulars described above is not credible and the appeal will be denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel