Citation Nr: 1807926 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-00 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to April 1974. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing is of record. In February 2017 the Board remanded these claims for further development. The claims have since been returned to the Board for further appellate action. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's left foot disability (to include acquired pes planus, hallux valgus deformity, hallux rigidis, and osteoarthritis) is etiologically related to service. 2. The preponderance of the evidence is against a finding that the Veteran's right foot disability (to include acquired pes planus, hallux valgus deformity, hallux rigidis, and osteoarthritis) is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and her representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). When the disease identity is established during service as a condition identified under 38 C.F.R. § 3.309(a), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes and there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Where the condition is not identified during service but 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. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d 1338, (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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. Id. Additionally, where a veteran served ninety days or more of active service, and certain "chronic diseases," such as arthritis, manifest to a compensable degree within a year of separation, the disease shall be presumed to have been incurred during service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree and sufficient observation to establish chronicity during that time. Id. However, service connection may be granted on a direct basis for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Analysis The Veteran contends that she has currently diagnosed left and right foot disabilities that are etiologically related to service. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) September 2010 that she had begun to experience pain in her feet during military service due to the shoes and boots she was required to wear. She contends that her symptoms had their onset shortly after she completed basic training and have persisted to the present. The Veteran has a currently diagnosed left and right foot disability. A diagnosis of bilateral metatarsophalangeal joint arthritis with hallux rigidus and pes planus was provided in January 2003. See West End Orthopedic Clinic with Dr. M.J. The treatment records received with the Veteran's reopened claim for bilateral foot pain and flat feet revealed treatment for foot pain and arthritis of the feet as early as September 2000. July 2008 X-ray imaging reports reflect that the Veteran has first metatarsal phalangeal joint arthritis. See West End Orthopedic Clinic with Dr. M.J. In the April 2017 VA examination, the Veteran was determined to have mild to moderate bilateral hallux valgus and mild to moderate bilateral hallux rigidus. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. A review of the Veteran's service treatment records did not reveal any complaints or treatment for foot conditions while on active duty. On the February 1974 separation report of medical history, the Veteran indicated she was not having any foot trouble. On the February 1974 separation report of medical examination, examiner also did not document any abnormalities related to her feet. Thus, there was no documentation of any foot related problems during her period of service. Although the Veteran has alluded to a continuity of symptomatology of foot pain since service, the Board finds that there is no medical evidence to support a finding of a continuity of symptoms since service or from within one year of separation from service. In this regard, the evidence shows a long gap between the conclusion of active duty service and treatment for foot pain. The Veteran concluded active duty service in 1974 and the initial notation of arthritis in the feet was not until 2000. See September 2000 VA treatment record. Moreover, the earliest post-service treatment records dated in 1992 do not contain reports of foot pain. The Veteran reported treatment in the 1980s, but this is still many years after her active duty service concluded. See September 2010 hearing testimony. Further, the service treatment records and post-service treatment records do not support a finding of arthritis of the feet during service or for many years after service. In light of the absence of any clinical evidence of arthritis of the feet during service or for many years following service, the Board concludes that neither the clinical record nor the lay statements of record establish a continuity of symptomatology between the Veteran's separation from service in 1974 until 2000, when arthritis was first mentioned in a medical treatment record. Furthermore, as the first radiographic evidence of arthritis was in July 2008, the evidence does not reflect that the Veteran's arthritis of the feet manifested to a compensable level within a year of separation. Accordingly, service connection for arthritis on a presumptive basis is not warranted. Finally, the Board finds that the competent evidence of record does not demonstrate that the Veteran's diagnosed left and right foot disabilities are etiologically related to the Veteran's service on a direct basis. In this regard, there are two etiology opinions of record. The Board considered the opinion of Dr. L.F., Doctor of Podiatric Medicine, reported in a September 2010 letter that with certainty she concluded the Veteran's current left and right foot disability could have been exacerbated by her military service. Before relying on an opinion phrased in terms of speculation, the Board must consider such factors as whether the examiner explained the basis for such an opinion or the basis must be otherwise apparent in the review of the evidence, whether the opinion is based on sufficient facts or data, whether the examiner based the opinion on the limitations of knowledge in the medical community at large, and whether the examiner identified what facts cannot be determined. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (Speculative medical opinions without an explanation as to why an opinion cannot be provided are generally inadequate). This opinion does not provide a sufficient rationale for explaining how the Veteran's current diagnosis of chronic flat foot pain as well as arthritis of her great toe joints was exacerbated by service, and does not cite to evidence to support her conclusion, such as service treatment records, the Veteran's work during active service, or medical research peer-reviewed literature. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Given its conclusory nature, less probative weight is afforded to this medical opinion. In April 2017 the VA examiner concluded, following an examination of the Veteran's feet, and based on an examination of the Veteran's service treatment records, occupational tasks during active service, and current peer-reviewed literature, it is less likely than not that the Veteran's left and right foot disabilities (to include acquired pes planus, hallux valgus deformity, hallux rigidis, and osteoarthritis) were caused by active duty service. The examiner noted that the Veteran's occupation in service as a Clerk-Typist (See DD 214) would not have resulted in tasks that could have caused the onset of acquired pes planus. This occupation would not have resulted in tasks that could have caused the onset of acquired pes planus. The examiner also noted the lack of treatment for any foot-related issues during active duty service, despite the fact the Veteran was treated for other medical issues during service. Also, on her ETS physical performed in February 1974, two months prior to Veteran being discharged from active duty service, she documented that she was not having any foot trouble, and the physician also did not document any abnormalities related to her feet. The examiner opined that posterior tibial tendon dysfunction (PTTD) rather than active duty service was the cause of the Veteran's left and right foot disabilities. The examiner continued that PTTD is an important cause of acquired pes planus that frequently observed in adults. Factors that play a role in the development of PTTD include age-related tendon degeneration and inflammatory arthritis, which is part of the ordinary aging process rather than being due to active duty service. The examiner concluded that the suspected etiology of the Veteran's acquired pes planus was PTTD. One of the factors that play a role in the development of PTTD is inflammatory arthritis. The Veteran does have the diagnosis of longstanding rheumatoid arthritis, diagnosed years after the conclusion of Veteran's active duty service. Based on this, the examiner found it is less likely than not that the etiology of the Veteran's left and right foot disabilities was caused by active duty service, but rather was caused by PTTD resulting from age-related rheumatoid arthritis. The Board places significant probative value on the April 2017 VA examiner's opinion. The April 2017 examiner's conclusion supports denying the Veteran's claim because the examiner has provided a medically plausible explanation for the cause of the Veteran's currently diagnosed foot disabilities that does not relate to the Veteran's active duty service. The opinion of the VA examiner is afforded great weight because the examiner provides a well-reasoned rationale for all findings, which are supported by the service records and medical research. The Board acknowledges the Veteran's assertions that her left and right foot disabilities are the result of her active duty service. The Board has considered these lay reports from the Veteran, including her reports of symptoms of pain, difficulty walking, joint stiffness, and inflammation. See May 2016 Statement in Support of Claim. The Board has also considered the lay reports of the Veteran's mother, who reported the Veteran complained of foot pain after military service. See May 2016 Statement in Support of Claim. The Board finds these lay reports to be competent to the extent they document pain in the Veteran's feet, but notes that the clinical diagnosis and etiology of the Veteran's left and right foot disabilities ultimately falls outside the realm of common knowledge of a lay person. While the Veteran, as a lay person, is competent to report observable symptomatology, she lacks the medical training and expertise necessary to provide a probative opinion on the medical issue of the etiology of her left and right foot disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates her left and right foot disabilities to service, she is not considered medically qualified to address the complex issue of the etiology of her current left and right foot disability. Accordingly, service connection for disabilities of the left and right foot is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Board finds that entitlement to service connection for left and right foot disabilities is not warranted. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(d). ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right foot disability is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs