Citation Nr: 19100748 Decision Date: 01/03/19 Archive Date: 01/03/19 DOCKET NO. 13-22 529 DATE: January 3, 2019 ORDER Service connection for a bilateral leg condition is denied. Service connection for a bilateral foot condition is denied. Service connection for a nerve condition is denied. FINDINGS OF FACT 1. The Veteran’s current left and right patellofemoral tendinopathy (claimed bilateral leg condition) did not have its onset in service and was not otherwise attributable to disease or injury sustained therein; the left and right patellofemoral tendinopathy was not caused or aggravated by service-connected bilateral feet deteriorated digital deformities of the metatarsals. 2. The Veteran is not shown to have a current bilateral foot condition, independent of the already service-connected bilateral feet deteriorated digital deformities of the metatarsals, that onset due to injury sustained during a period of service or as a result of service-connected bilateral feet deteriorated digital deformities of the metatarsals. 3. The Veteran’s current peripheral neuropathy of the feet (claimed nerve condition) did not have its onset in service and was not otherwise attributable to disease or injury sustained therein; the peripheral neuropathy of the feet was not caused or aggravated by service-connected bilateral feet deteriorated digital deformities of the metatarsals. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral leg condition have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria to establish service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria to establish service connection for a nerve condition have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1974. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by RO. The Board remanded the appeal in March 2016 for further development of the record. Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion regarding the nature and etiology of the claimed bilateral leg, bilateral feet and nerve conditions. The addendum opinions were obtained in March 2017, April 2017 and January 2018. The appeal originally included the issue of entitlement to service connection for claw toes, idiopathic, familial (claimed as bilateral hammer toes with surgery for fractured toes). In May 2018, the RO granted service connection for bilateral feet deteriorated digital deformities of the metatarsals and assigned a 30 percent rating effective January 20, 2009. The Veteran filed a Notice of Disagreement (NOD) with the assigned 30 percent rating in July 2018. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). The electronic record indicates that the AOJ is taking action on this issue. Although the matter is therefore within the Board’s jurisdiction, it has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran’s favor, the RO will certify the matter to the Board which will undertake appellate review of the RO’s action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement); 38 C.F.R. § 19.35 (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a bilateral leg condition The Veteran contends that he has a bilateral leg condition that was caused or aggravated by his service-connected bilateral digital deformities of the metatarsals. In the alternative, the Veteran generally alleges that his bilateral leg condition onset due to event or incident of his active service. An August 1971 service treatment record documents the Veteran’s complaint of a sore right leg. The examiner noted that the Veteran complained of anterior tibia pain. The April 2017 Report of VA knee and lower leg conditions examination documents diagnosis of bilateral patellofemoral tendinopathy. The Veteran complained that his knee discomfort onset in approximately 1973 or 1974, primarily in his left knee. He was unable to recall when the right knee discomfort onset. On examination, the physician opined that the bilateral knee disorder was less likely as not caused or aggravated by his service-connected toes disability. The physician explained that the service-connected toes disability would not reasonably be expected to result in bilateral patellofemoral tendinopathy. Further, no causality was documented and no aggravation was identified. In a May 2017 statement, the Veteran’s treating physician reported that the Veteran continued to have knee symptoms which may be influenced by lower foot abnormal movements over time. In the January 2018 VA examination addendum opinion, the examiner noted that feet can affect the knees when there is mechanism that loads the forces to cause abnormal gait. The abnormal gait has to reveal altered forces that would affect the joint above the abnormality to cause overuse syndrome. However, the Veteran had common findings of patellofemoral pain that was often seen with people who have normal feet. Further, no relationship was found on examination of the knees that was consistent with feet stressing the knees equally given that he had one knee worse than the other and did not recall the onset of the knee pain related to foot symptoms. The examiner concluded that the Veteran’s bilateral patellofemoral tendinopathy was not at least as likely as not secondary or aggravated by the service-connected toes disability as there was no mechanical relationship for stress from feet to the knees. The examiner determined that the disorders were separate and independent. Though the Veteran has current bilateral patellofemoral tendinopathy, the preponderance of the evidence is against a finding of a linkage between the onset of the bilateral patellofemoral tendinopathy and a service-connected disability or a period of service. Rather, the more probative evidence shows that the current bilateral patellofemoral tendinopathy onset after service and had no etiological relationship to the service-connected bilateral feet deteriorated digital deformities of the metatarsals (See April 2017 VA examination report and January 2018 VA addendum examination report). The Board has considered the opinion provided by the private physician in May 2017, that the Veteran’s knee symptoms may be influenced by lower foot abnormal movements over time. To the extent this statement represents evidence in favor of the claim the Board is affording it little probative value because it is speculative at best and conjectural or speculative opinions which suggest no more than some remote possibility of an etiological relationship are insufficient to support a grant of service connection. See 38 C.F.R. § 3.102 (2007). See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder “may or may not” exist or “may or may not” be related, is too speculative to establish the presence of the claimed disorder or any such relationship)). Accordingly, this opinion is afforded little probative value. The more probative opinions are the opinions offered by the VA examiners in April 2017 and January 2018. In January 2018, the VA examiner acknowledged that feet can affect the knees when there is mechanism that loads the forces to cause abnormal gait. The abnormal gait has to reveal altered forces that would affect the joint above the abnormality to cause overuse syndrome. However, the Veteran had common findings of patellofemoral pain that was often seen with people who have normal feet. The Board has the authority to and affords more probative weight to these opinions of the VA examiners offered in April 2017 and January 2018. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is not competent to link his bilateral patellofemoral tendinopathy to service-connected disability or service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is a lay person and is not competent to establish that his current bilateral patellofemoral tendinopathy onset as a result of service or service-connected bilateral feet deteriorated digital deformities of the metatarsals. The Veteran is not competent to offer an opinion as to etiology of any bilateral patellofemoral tendinopathy. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. The claim of entitlement to service connection for a bilateral leg (bilateral patellofemoral tendinopathy) disorder must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a bilateral foot condition The Veteran contends that he has a bilateral foot condition that onset due to event or injury sustained during his period of service. Service treatment records extensively document the treatment the Veteran received for his claw toe deformity. Subsequent to service, the June 2013 report of VA foot conditions examination documents diagnosis of bilateral claw toes (status post-surgical repair, to include mildly highten arch and metatarsalgia). Service connection has been established for bilateral feet deteriorated digital deformities of the metatarsals and a 30 percent rating has been assigned. The Veteran is not shown to have a current bilateral foot condition, independent of the already service-connected bilateral feet deteriorated digital deformities of the metatarsals, that onset due to event or injury sustained during a period of service or as a result of service-connected bilateral feet deteriorated digital deformities of the metatarsals. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is a lay person and is not competent to establish that he has a current bilateral foot condition, independent of the service-connected bilateral feet deteriorated digital deformities of the metatarsals. The Veteran is not competent to diagnose or offer opinion as to etiology of any current bilateral foot condition. The question regarding the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a bilateral foot condition must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). 3. Entitlement to service connection for a nerve condition The Veteran contends that he has a nerve condition that was caused or aggravated by his service-connected bilateral feet deteriorated digital deformities of the metatarsals or that generally onset due to event or incident of his active service. The service treatment records contain no complaints of, treatment for or diagnosis of a nerve condition. Subsequent to service, the June 2013 report of VA peripheral nerves conditions examination documents diagnosis of peripheral neuropathy of both feet. The Veteran reported that his feet became numb after foot surgery performed during his period of service. He complained that his feet felt cold and that he experienced numbness on the bottom of his feet and toes. He also reported that he had recently been diagnosed with diabetes mellitus. The physician concluded that the etiology of the Veteran’s peripheral neuropathy was unclear but noted that the Veteran had diabetes which could result in neuropathy. In the March 2017 report of VA examination addendum, the physician reiterated that the etiology of the Veteran’s bilateral nerve condition was unspecified but may be associated with his diabetes. In the April 2017 report of VA knee and lower leg conditions examination, the examiner opined that it was less likely as not that the bilateral nerve condition in the lower extremities or feet was caused or aggravated by his service-connected bilateral feet deteriorated digital deformities of the metatarsals. The examiner explained that no other conditions caused or aggravated by his service-connected bilateral foot disability were identified. In the January 2018 report of VA examination addendum, the examiner reviewed the evidence of record and concluded that the Veteran had diabetic neuropathy and explained that the diabetic neuropathy was not aggravated by the service-connected bilateral feet deteriorated digital deformities of the metatarsals. The examiner explained that diabetic neuropathy was related to diabetes and the control of diabetes and there was no relationship between diabetes and the Veteran’s service-connected bilateral feet deteriorated digital deformities of the metatarsals. Thus, the examiner concluded that the Veteran’s claimed nerve condition was not aggravated by his service-connected bilateral feet deteriorated digital deformities of the metatarsals. Though the Veteran has a current peripheral nerves disorder of the lower extremities, the preponderance of the evidence is against a finding of a linkage between the onset of the nerves disorder and a service-connected disability or a period of service. Rather, the evidence shows that the current peripheral nerves disorder onset after service and had no etiological relationship to the service-connected bilateral feet deteriorated digital deformities of the metatarsals. Instead, the peripheral nerves disorder was associated with the Veteran’s diabetes (See June 2013 VA examination report and March 2017, April 2017and January 2018 VA addendum examination reports). The Veteran is a lay person and is not competent to establish that he has current nerve disability related to service-connected disability or service. The Veteran is not competent to diagnose or offer opinion as to etiology of any current nerve condition examination. The question regarding the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a nerve condition must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel