Citation Nr: 19128166 Decision Date: 04/11/19 Archive Date: 04/11/19 DOCKET NO. 17-65 802 DATE: April 11, 2019 ORDER Entitlement to service connection for a left foot condition is denied. Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran’s current left foot condition is attributable to a known clinical diagnosis; and, the preponderance of the evidence is against finding that any current left foot condition began during active service, is otherwise related to an in-service injury or disease. 2. The Veteran’s current right foot condition is attributable to a known clinical diagnosis; and, the preponderance of the evidence is against finding that any current right foot condition began during active service, is otherwise related to an in-service injury or disease. 3. The Veteran’s diagnosed diabetes mellitus type II was first manifested many years following service discharge, and is not otherwise related to any disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for any left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2018). 2. The criteria for service connection for any right foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2018). 3. The criteria for service connection for diabetes mellitus have not met. 38 U.S.C. §§ 1110, 1131, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 through June 1992. The Veteran’s active duty service included service in the Southwest Asia Theater of Operations during the Persian Gulf War. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for diabetes mellitus type II, for a right foot condition, and for a left foot condition. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110 (2012); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, 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) (2018). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease 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 diseases 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 (2018). For a Veteran with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active duty service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021; and, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" may be one that results from an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness." 38 U.S.C. § 1117 (a)(2)(A), (B) (2012); 38 C.F.R. § 3.317 (a)(2)(ii) (2018). A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms includes fibromyalgia, for example. 38 C.F.R. § 3.317(a)(2)(i)(B) (2018). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2018). 1. Entitlement to service connection for any left foot condition is denied. 2. Entitlement to service connection for any right foot condition is denied. The Veteran asserts that his right and left foot conditions are the result of his in-service foot injuries. The Veteran’s service treatment records (STRs) reflect multiple complaints of foot conditions. In May 1983, the Veteran received treatment for an inflamed left great toe. Additionally, in May 1983, the Veteran had surgery to remove his left great toenail. In 1984 the Veteran was treated for a right foot contusion. In September 1987, the Veteran had swollen feet for over a week. At the same time, it was noted that the Veteran had black lesions on the bottom of both his feet. Over the course of the appeal period, the Veteran was afforded two VA Examinations. The first, conducted in November 2013, addressed whether any of the Veteran’s current right and/or left foot conditions warranted service connection on a direct basis. The examiner noted that the Veteran currently suffered from bilateral heel spurs/calcaneal enthesophyte and bilateral midfoot osteoarthrosis. The examiner also acknowledged the Veteran’s in-service foot conditions, including his left toenail removal, right foot contusion, and trench foot in 1986 (which the examiner noted had been treated and resolved). However, the examiner concluded that the Veteran’s current left and right foot conditions were less likely than not proximately due to his in-service injuries. The examiner explained that the conditions present in service had undergone treatment and had resolved; and, noted that the current conditions are completely different than the in-service conditions. The second examination, afforded in March 2015, addressed the Veteran’s assertion that his disabilities warranted presumptive service connection under 38 C.F.R. § 3.317. The examiner opined that the Veteran’s foot aches are related to his plantar fasciitis, diabetes, and obesity. The examiner explained that diabetes is known to be related to issues of the feet and the hallmark of fasciitis is pain in the feet. The examiner concluded that it is unknown what percentage of the pain is related to each disease, but each could likely have some effect on the pain, and that makes these aches a disease with a known etiology. Further, when the Veteran was treated, in July 2014, for a bilateral nail disorder of the 1st toe, the Veteran’s private physician explained that it was due to the Veteran’s diabetes and aggravated by walking in shoes. Further, the physician noted that the Veteran’s bilateral toenail condition began two years ago, which was 20 years after the Veteran left service. While the Veteran has current right and left foot disabilities and had injuries effecting his feet while in service, the preponderance of the evidence is against finding that the two are connected. The examiner in 2013 noted that the conditions were completely different and not related and the examiner opined that the in-service injuries could not have caused the current right and/or left foot conditions. The examiner in 2015 found that the Veteran’s foot pain had known etiologies, and, thus, 38 C.F.R. § 3.317 is not applicable. Further, there is no evidence of the record that contradicts the findings of either examiner or of the Veteran’s private physicians who found that the conditions were related to the Veteran’s obesity and diabetes. In reaching the above conclusions, 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)(2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, service connection for any right and/or left foot condition is not warranted. 3. Entitlement to service connection for diabetes mellitus is denied. The Veteran asserts that his diabetes mellitus, type II, is the result of his active duty service, to include exposure to environmental hazards in Southwest Asia. Service treatment records (STRs) do not reflect a diagnosis, treatment, or symptoms of diabetes mellitus. A report of medical examination from February 1989 reflects a normal endocrine clinical evaluation. While a report of medical examination from March 1982 does reflect an abnormal endocrine system, the examiner specifically indicated that the abnormality is a prostetic left testicle. Post-service private treatment records from February 2013 reflect that the Veteran’s diabetes mellitus began in 2013. The private physician listed that the main risk factor for diabetes was the Veteran’s obesity. In a July 2014 private treatment record, the Veteran’s private physician noted that the Veteran’s age along with the Veteran’s obesity were risk factors for his diabetes. Further, it should be noted that the Veteran does not assert that his diabetes began any earlier than 2013, which is over two decades after the Veteran left service. Upon review of the evidence of record, the Board finds that service connection for diabetes mellitus is not warranted. While the Veteran asserts his diabetes warrants presumptive service connection as he is a Gulf War Veteran, the Veteran’s disability does not qualify for presumptive service connection. The Board finds that the Veteran does not have a qualifying chronic disability pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, one due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. Diabetes mellitus is a known clinical diagnosis. As such, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted. It must be noted that the Veteran was not afforded a specific VA examination in connection with his service. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the record contains competent evidence that the claimant has a current disability but there is no indication that the disability, or that signs and symptoms of disability, may be associated with active service. Private treatment records reflect that the Veteran’s diabetes mellitus, type II, did not begin until 2013, two decades after service, and that it was likely the result of his age and obesity. There is no medical evidence of record that contradictions this in any way. While the Veteran asserts that his diabetes mellitus is connected to his service, the question of whether diabetes mellitus was a result of a disease or injury that is due to service relates to an internal medical process that extends beyond an observable cause-and effect relationship that is of the type that the courts have found to be beyond the competence of lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (“sometimes 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”). In light of this, the Board concludes that an examination is not required in this instance. (Continued on the next page)   In reaching the above conclusions, 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)(2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, service connection for diabetes mellitus, type II, is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk