Citation Nr: 20003789 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 14-11 597 DATE: January 16, 2020 ORDER Entitlement to service connection for pes cavus of the right foot is denied. Entitlement to service connection for pes cavus of the left foot is denied. Entitlement to service connection for status post fracture with traumatic arthritis of the right foot is denied. Entitlement to service connection for a right foot disability, other than pes cavus and status post fracture with traumatic arthritis, is denied. Entitlement to service connection for a left foot disability, other than pes cavus, to include as secondary to a right foot disability, is denied. Entitlement to service connection for a left knee disability, to include as secondary to a right foot disability, is denied. FINDINGS OF FACT 1. The Veteran’s pes cavus of the right foot, a congenital disease, was noted at entry into service and did not permanently increase in severity during service. 2. The Veteran’s pes cavus of the left foot, a congenital disease, was noted at entry into service and did not permanently increase in severity during service. 3. The Veteran’s status post fracture with traumatic arthritis of the right foot was not noted at entrance into service, but clearly and unmistakably pre-existed service and did not permanently increase in severity during service. 4. The Veteran’s right foot disability, other than pes cavus and status post fracture with traumatic arthritis, best characterized as hammertoes, was not shown to have begun during service and is not otherwise related to an in-service injury or disease. 5. The Veteran’s left foot disability, other than pes cavus, best characterized as degenerative arthritis and hammertoes, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 6. The Veteran’s left knee disability, best characterized as degenerative joint disease, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for pes cavus of the right foot have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.306. 2. The criteria for service connection for pes cavus of the left foot have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.306. 3. The criteria for service connection for status post fracture with traumatic arthritis of the right foot have not been met. 38 U.S.C. §§ 1110, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.306. 4. The criteria for service connection for a right foot disability, other than pes cavus and status post fracture with traumatic arthritis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a left foot disability, other than pes cavus, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for 20 days in January 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. These matters were previously before the Board in October 2015, March 2016, and January 2018, when they were remanded for further development. They now return for appellate review. The Board concludes that substantial compliance with the past remand directives has been achieved, as will be discussed in greater detail below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 1. Entitlement to service connection for pes cavus of the right foot, entitlement to service connection for pes cavus of the left foot, and entitlement to service connection for status post fracture with traumatic arthritis of the right foot As set forth in a March 2011 statement, and in other statements, the Veteran asserted in the 1960’s, he had a bicycle accident which resulted in his right ankle sustaining a bone chip, that he subsequently had surgery on this ankle to remove the bone chip, but thereafter, his right foot was fine. However, he reported that during basic training his right foot started to swell and became extremely painful and he received a medical discharge. Since that time, the Veteran asserted that his right foot continued to worsen. Similarly, in an April 2014 substantive appeal, the Veteran reported, in part, that even though he had a right foot condition prior to entrance into service, the condition was aggravated while in service as within a week of entrance, he developed pain, and that although he was in training for eight days, he was subsequently sent to a holding unit where he was required to perform base clean-up which required extensive time on his foot which was not conductive to a healing process prior to separation. In a December 2015 statement, the Veteran reported, in part, that after he separated from service, he had to take at least four pain pills a day to be able to work and that he would have put in for disability when he first got discharged but he did not know it was available. In another December 2015 statement, the Veteran reported a pre-existing right foot surgery but that any problems to this resolved prior to service and that after exiting the service he started having pain and swelling in his right foot. A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both pre-existence and aggravation by clear and unmistakable evidence. A claimant need not produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that a disease pre-existed service. In other words, the burden is not on the claimant to show that his disability increased in severity. To the contrary, the burden is on VA to establish by clear and unmistakable evidence that a pre-existing disease did not increase in severity during service or that any increase was due to the natural progress of the disease. This burden must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding that the record contains insufficient evidence of aggravation. Horn v. Shinseki, 25 Vet. App. 231 (2012). Similarly, if any in-service aggravation of a pre-existing disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. 38 C.F.R. § 3.306. Additionally, service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. See 38 C.F.R. § 3.303 (c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). A disease refers to a condition considered capable of improving or deteriorating. VAOPGCPREC 67-90. With regard to congenital diseases, the presumption of soundness applies where congenital diseases are not noted at entry and, if not noted, VA must show by clear and unmistakable evidence that the congenital disease pre-existed service and was not aggravated by service. See Monroe, 4 Vet. App.at 515. In contrast, congenital or developmental defects automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. § 3.303 (c), 4.9. However, if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. Defects are typically static conditions which are incapable of improvement or deterioration. VAOPGCPREC 67-90. A defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating, and that any worsening might demonstrate that the condition is a disease. O’Bryan v. McDonald, 771 F.3d 1376, 1380 (2014). A June 2011 VA examiner, in part, endorsed a diagnosis of bilateral pes cavus and found this was a pre-existing condition. The June 2011 VA examiner also documented, the Veteran, by his own history, stated that he was born with high arches and that his father had the same condition. Additionally, the June 2011 VA examiner also explained the Veteran reported he hurt his right foot at age 15 when he fell off a bicycle, was first treated with a cast, but developed chronic and progressive discomfort in the mid portion of his right foot. The June 2011 VA examiner noted that in December 1971 an arthrotomy of the sinus tarsi was performed and at the time of the surgery, some bone was removed from the inferior aspect of the tarsal navicular. The June 2011 VA examiner, in part, also endorsed a diagnosis of traumatic arthritis of the right foot. Thereafter, a May 2016 VA examiner also endorsed a diagnosis of bilateral pes cavus and noted this was congenital and occurred at birth. In a subsequent May 2016 opinion, the same examiner again indicated the Veteran’s right and left foot condition of pes cavus was congenital, was often asymptomatic, and occurred simultaneously at birth. The May 2016 VA examiner also endorsed a diagnosis of status post right foot fracture, further noted a navicular fracture right foot in June 1969. Thus, the clinical evidence of record demonstrates Veteran has current diagnoses of congenital bilateral pes cavus and status post fracture with traumatic arthritis of the right foot. However, the Board must first address whether the Veteran’s bilateral pes cavus is a congenital defect or congenital disease. Here, the evidence of record demonstrates the Veteran’s pes cavus is capable of improving or deteriorating, which is indicative of a disease. O’Bryan, 771 F.3d at 1380. In particular, a February 1973 medical record documented, in part, that at the present time, the only significance evidence of organic orthopedic pathology was a moderate asymptomatic pes cavus deformity of both feet and that this apparently had been non-incapacitating and had never required treatment as such. Conversely, a March 2010 medical record documented, in part, an impression of severe symptomatic cavus deformity of the bilateral feet. Further, the June 2011 VA examiner noted that a cavus foot was often caused by neurological disorder or other medical conditions such as cerebral palsy, Charcot-Marie-Tooth’s disease, polio or spina bifida. Therefore, the weight of the evidence supports a finding that the Veteran’s bilateral pes cavus is a congenital disease, and not a congenital defect. On an examination obtained in conjunction with the Veteran’s entrance into service, it was clinically noted that the Veteran had pes cavus as listed under the summary of defects and diagnoses. Further, while this examination bears dates both in February 1973 and September 1973, both of these dates are prior to the Veteran’s active service in January 1974. Additionally, the Board recognizes the March 2016 and January 2018 Board remands indicated the presumption of soundness applied as the Veteran’s February 1973 entrance examination reflected his feet were clinically normal upon examination. However, as discussed, while the Veteran’s feet, as designated by number 36 under the clinical evaluation portion of the form, were generally indicated as normal, under the summary of defects and diagnoses portion of the form, a notation as to number 36, specific to feet, clearly listed pes cavus. See McKinney v. McDonald, 28 Vet. App. 15 (2016). As such, the evidence shows bilateral pes cavus was noted on examination when the Veteran was accepted and enrolled into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the presumption of soundness does not apply to the congenital disease of pes cavus was noted at entry and thus the issue as to this disability is whether the Veteran’s bilateral pes cavus was aggravated by service. See Horn, 25 Vet. App. at 234. Further, as to the diagnosis of status post fracture with traumatic arthritis of the right foot, pursuant to the January 2018 Board remand, a February 2018 opinion found the evidence of record clearly and unmistakably showed that the Veteran had a right foot disability that existed prior to his entry onto active duty. The February 2018 opinion cited a February 1973 medical letter that described on June 18, 1969 the Veteran sustained a fracture through the tarsal navicular of the right foot, which was treated with a short leg cast and he seemed to do well. However, the February 1973 medical letter also described that the Veteran began to develop chronic and progressive discomfort into the midtarsal region of the right foot and on December 8, 1971 an arthrotomy of the sinus tarsi was performed. The February 1973 medical letter stated at the time of this surgery, some bone was removed from the inferior aspect of the tarsal navicular. The February 1973 medical letter stated that no evidence of distinct pathology was accurately determined but also noted it was felt as though there may be some traumatic arthrosis secondary to the old fracture of the tarsal navicular. The February 2018 opinion also discussed another February 1973 medical record which documented, in part, asymptomatic pes cavus deformity of both feet; however, as discussed above, the presumption of soundness does not apply to the Veteran’s pes cavus as it was noted upon entrance into service. Therefore, although status post fracture with traumatic arthritis of the right foot was not noted on the Veteran’s entrance examination, the evidence, considered as a whole, constitutes clear and unmistakable evidence that the Veteran’s status post fracture with traumatic arthritis of the right foot pre-existed his service. Thus, the presumption of soundness does not attach, and service connection for status post fracture with traumatic arthritis of the right foot may be considered only on the basis of aggravation during service. 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. To rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a) and (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). To this point, a June 2011 VA examiner found, in part, that eight days of training was certainly not enough to aggravate any condition. The June 2011 VA examiner explained the Veteran did just did eight days of basic training when his right foot swelled up and then he was medically boarded out, and since then his condition had progressed. The June 2011 VA examiner also stated that the brief time that the Veteran spent in the military was certainly not enough to cause any long-term damage, and consequently, it was less likely than not to have been aggravated by the eight days he spent in the military. The June 2011 VA examiner also stated that ever since then, both feet had progressed to the current condition which was a normal progression of time. Moreover, the June 2011 VA examiner also stated this Veteran should never have been taken into the service based on his high arches alone and that people with high arches were prone to developing significant foot problems and knee problems. Pursuant to the March 2016 Board remand, a May 2016 examination and opinion were obtained which did not address the diagnoses of bilateral pes cavus or status post fracture with traumatic arthritis of the right foot based on aggravation. Another May 2016 addendum opinion was obtained from the same May 2016 VA examiner which also did not address these claims based on aggravation but which indicated disagreement with private opinions of record. Additionally, pursuant to the January 2018 Board remand, the same May 2016 VA examiner provided another opinion in a February 2018, and which, as discussed above, found, in part, that the Veteran had a right foot disability that existed prior to his entry onto active duty. Further, although in the February 2018 opinion, the examiner answered no to a question regarding if the evidence clearly and unmistakably showed that the pre-existing right foot disability was not aggravated by service, it appears clear that the examiner meant to answer yes, as later he explicitly stated the Veteran’s right foot disability was not aggravated by his military service. Further, in the February 2018 opinion, the examiner also described that on the eighth day of basic training, the Veteran went to sick bay complaining of pain and swelling in his foot for two weeks and was eventually medically boarded out. The February 2018 opinion noted the Veteran joined the military on January 9, 1974 and left service on January 28, 1974, and this brief less than one month of basic training served to indicate Veteran was unfit for service but the underlying nature of the problem was only better defined not aggravated as there was no worsening of the underlying condition. Consistent with the June 2011 and February 2018 opinions, of record is a January 1974 Medical Report which reflects the Veteran had cavovarus, right foot, fixed, severe, symptomatic, and that he was unable to perform duty requiring prolonged marching, standing or heavy lifting; however, is no indication of worsening of the underlying condition. Similarly, another January 1974 service treatment record documented, in part, since starting basic training the Veteran noted increasing pain in his right foot with swelling, aggravated by prolonged standing, marching and running. As discussed above, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition as contrasted to symptoms is worsened and the symptoms of increased pain and swelling do not constitute a change in the underlying conditions of status post fracture with traumatic arthritis of the right foot or right foot pes cavus. Indeed, as discussed above, the Board reiterates the February 2018 opinion explicitly found there was no worsening of the underlying condition. In addition, there is no evidence that the Veteran’s left foot pes cavus worsened during his service. In a May 2016 and March 2017 statements, the Veteran reported, in part, the May 2016 VA examiner first stated he did not understand as the Veteran was in service for only eight days, that the examiner finished the examination after 15 minutes when he was scheduled for a three hour appointment, and that the examiner said he was going obtain x-rays but did not. In a December 2016 statement, the Veteran also reported was sent to a very rude VA examiner, and that the VA examiner stated his private physician who submitted an opinion was trying to get him benefits, and when he told his private physician what the VA examiner said, his reaction was it that it did not help him if the Veteran received benefits. In a September 2019 statement, the Veteran requested to see another examiner and reiterated he did not believe the VA examiner read his file because when he went into the office the examiner said he was going to send the Veteran to x-ray but they were busy, and also noted the Veteran was only in service eight days and could see this was not going anywhere, and that he had three hour appointment but was in the office less than 10 minutes. However, the question of whether an examiner is competent and whether he has rendered an adequate examination are two separate inquiries. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id. at 1381. Rather than challenging the competency of the May 2016 VA examiner in this case, the Veteran’s objection is based on the examiner’s demeanor during the examination and disagreement with the duration of the examination, as in particular, x-rays were not obtained. However, the Board observes that x-rays had been obtained in conjunction with the prior June 2011 examination report. Further, there is no evidence to support the Veteran’s contentions nor is the Board able to discern any irregularities in the May 2016 foot conditions, including flatfoot (pes planus) disability benefits questionnaire, thus the May 2016 VA examiner’s findings and subsequent opinions are adequate. Additionally, in April 2011 statement, J. C., reported he had known the Veteran since the mid-1970s and even at that time he was having problem with his feet. Similarly, in an April 2011 statement, C. B., reported, in part, that he had known the Veteran since about 1976, and since meeting the Veteran back in the 1970s, he had become aware of his medical issues concerning his feet, specifically that he always had problems with his feet and they continued to get worse. However, these statements merely indicate the Veteran’s bilateral pes cavus and status post fracture with traumatic arthritis of the right foot existed since the 1970s which is consistent with the other evidence of record, but do not state that the Veteran’s bilateral pes cavus and status post fracture with traumatic arthritis of the right foot increased in severity due to his service in January 1974, and thus lack probative value in this regard. To the extent that the Veteran asserts that his bilateral pes cavus and status post fracture with traumatic arthritis of the right foot increased in severity, including as due to pain and swelling, during his period of active duty service, the Veteran is competent to describe such symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his assertions of worsening are largely not credible as they are undermined by the absence of any report of symptomatology for either foot until many years after separation from service. In this regard, a March 1997 medical record noted, in part, the Veteran had a very cavus type foot, particularly the right foot and lesser of a cavus foot on the left and that he had pain in the ball of the foot occasionally. Thus, the March 1997 medical record is not indicative of severe symptomology since service as it documents only occasional pain in the ball of the foot. Similarly, an August 2000 private medical record noted, in part, that the Veteran had severe cavus type deformity and severe degenerative arthritis changes and that he complained about more and more pain and that initially it was periodic, but now it was constant. Further, the post service medical evidence reflects the same or similar symptomatology in conjunction with the Veteran’s post service employment as a custodian as he reported during service. Specifically, a March 1997 medical record documented, in part, the Veteran worked as a maintenance person and had had trouble with his feet for a long period of time and that he had surgery on the right foot about 10 or 12 years ago for a bone chip. February 1999 and March 1999 medical records also reflected the Veteran was employed as a school custodian and the February 1999 medical record also noted the best treatment would be to consider a functional prescription orthotic to support the cavus arch type, and this should enable him to work without pain. A September 2000 medical record also noted the Veteran had a golf cart at work which eliminated his extra walking activities and a May 2007 medical record noted the Veteran used a scooter at work because of his extremely painful feet. However, a December 2008 medical record also noted the Veteran worked as a custodian which required being up and on his feet for a major portion of the day and that he reported moderate dull ache type pain subsequent to prolonged standing and ambulation. Similarly, a March 2010 medical record noted the Veteran had a longstanding history of progressive bilateral foot and ankle pain, stiffness and limitation of function and severe cavus deformity of bilateral feet with hammertoe deformities. The March 2010 medical record noted the Veteran had been fitted with custom orthotics, which provided definite improvement in symptoms and he had able to continue his full-time employment as a maintenance worker but that he had concerns regarding required increased standing and ambulation during the course of employment this summer. Additionally, in a June 2019 statement, the Veteran reported, in part, that he was an elementary custodian so he had a lot of duties which required him to be his feet a lot and that he was able to work as long as he did because his bosses were very good to him, specifically one of his bosses bought him a golf cart so it was easier for him to get around. Thus, the record reflects the Veteran’s post service employment included employment as custodian, which required prolonged standing and ambulation, and which led the same or similar symptoms as he reported during service. Therefore, when weighed against the other evidence of record, the Board finds that the Veteran’s lay statements are not credible do not sufficiently show that there was a permanent increase in severity of bilateral pes cavus during service. Further, the Board places substantial probative weight on the June 2011 and February 2018 opinions. These opinions are probative, because they based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the same examiner who provided the February 2018 opinion, also considered the private opinions authored by Brandon Hawkins, DPM, and James E. Teetla, DPM, as directed by the March 2016 Board remand, in a May 2016 addendum opinion. Specifically, in an August 2011 private medical record, Dr. Hawkins, documented, in part, the Veteran presented for follow-up of severe notable callus foot deformity associated to previous history of trauma associated to both feet secondary to military activity. Similarly, in an August 2011 statement, Dr. Hawkins reported, in part, the Veteran was in the military service at which time he was injured in the service, which potentiated an old injury that was causing a severe notable painful injury associated to the right and left lower extremity. However, this opinion is factually inaccurate as there is no indication the Veteran sustained a specific injury during service. In addition, Dr. Hawkins does not specifically identify the old injury he refers to nor a diagnosis related to the painful injury associated to the right and left lower extremity that he also refers to. Further, neither opinion from Dr. Hawkins contain any rationale and thus lack probative value. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In a November 2015 private medical record, Dr. Teetla noted the Veteran’s report that he had been in service a week, and indicated, his opinion was the Veteran did stay in the military long enough to induce this problem of chronic pain and also bring in compensation problems by changing his gait and it had basically affected the rest of his life, and this could occur at the level of military activity. In November 2015 and December 2015 statements, Dr. Teetla stated, in part, this foot-type bilateral, was biomechanically inherently at risk for pain and chronic issues if they participated in increased activities and it was more than likely that the military increased level of activity was the cause and source of the Veteran’s foot pain. Dr. Teetla stated it was more than likely because of the activity level his feet experienced and was required to participate in was the cause of his chronic pain now and would continue to have. However, Dr. Teetla’s opinion is inconsistent with the post service medical evidence, to include the March 1997 medical record which noted the Veteran had pain in the ball of the foot occasionally and which is not reflective of chronic pain and compensation problems since separation from service in January 1974. Further, the June 2011 VA examiner noted, in part, the Veteran walked in with no difficulty, did not seem to be favoring either extremity, and his gait was normal, which also contradicts Dr. Teetla’s findings. Additionally, Dr. Teetla relied on a finding that increased activities caused the Veteran’s foot pain but did not address the Veteran’s post service employment as a custodian, which as discussed above, required the Veteran being up and on his feet for a major portion of the day as documented in a December 2008 medical record. Moreover, there is no indication that Dr. Hawkins or Dr. Teetla reviewed the Veteran’s claims file, or more importantly, his service treatment records. Further, as indicated above, the opinions of Dr. Hawkins or Dr. Teetla were addressed in a May 2016 addendum opinion. The examiner, in the May 2016, addendum opinion, specifically cited to these opinions which reflects that these opinions were reviewed and the VA examiner generally indicated his disagreement with each. In this regard, although the May 2016 addendum opinion did not include detailed discussion of these opinions, the examiner considered the opinions which was the intent of the prior Board remand directives. Moreover, as discussed above, as the Board has found opinions of Dr. Hawkins or Dr. Teetla lack probative value for other reasons, remand for another opinion is not warranted. Additionally, the March 2016 Board remand also directed the potential VA examiner consider and discuss the Veteran’s competent lay statements to the effect that following his December 1971 right foot surgery, he had no further problems with his feet until basic training in January 1974, and that his right foot pain had persisted ever since; however, as discussed above, while the Veteran is competent to report such symptoms, his reports are not credible. Thus, remand for another opinion is not warranted and there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Based on the foregoing, the Veteran’s bilateral pes cavus and status post fracture with traumatic arthritis of the right foot did not increase in severity during service. Because the evidence does not demonstrate worsening of bilateral pes cavus or and status post fracture with traumatic arthritis of the right foot during service (preponderance of the evidence is against a finding of worsening during service), the presumption of aggravation does not arise in this case, so the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Browder v. Derwinski, 1 Vet. App. 204, 206-07 (1991). Because aggravation by service of the pre-existing bilateral pes cavus and status post fracture with traumatic arthritis of the right foot was not demonstrated, the benefit of the doubt doctrine does not apply, and the claims for service aggravation for bilateral pes cavus and status post fracture with traumatic arthritis of the right foot must be denied. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a right foot disability, other than pes cavus and status post fracture with traumatic arthritis of the right foot, entitlement to service connection for a left foot disability, other than pes cavus, to include as secondary to a right foot disability, and entitlement to service connection for a left knee disability, to include as secondary to a right foot disability As set forth above, the Veteran asserts that following his right foot surgery prior to service, he had no further problems with his feet until basic training in January 1974, and that his right foot pain has persisted ever since. Additionally, in a March 2011 statement, Veteran asserted his right foot injury had caused him to compensate with his left leg, and in an October 2016 statement, the Veteran reported, in part, that post-service he protected his right foot by favoring it which damaged his left foot and left knee. The question for the Board is whether the Veteran has a right foot disability other than pes cavus and status post fracture with traumatic arthritis of the right foot, a left foot disability other than pes cavus, and/or a left knee disability, to include a qualifying left foot disability or left knee disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service for a qualifying disability, or whether he has a right foot disability other than pes cavus and status post fracture with traumatic arthritis of the right foot, a left foot disability other than pes cavus, and/or a left knee disability which is otherwise shown to be etiologically related to an in-service injury, event, or disease. In this regard, a June 2011 VA examiner endorsed diagnoses of mild degenerative arthritis of the left foot, bilateral hammertoes, and degenerative joint disease of the left knee. These findings are generally consistent with the Veteran’s private medical records. For instance, although an August 2011 private medical record also endorsed a diagnoses of severe callus foot deformity with equinus foot deformity to the left foot, severe flat foot deformity with posterior tibial tendon dysfunction to the right foot, and equinus foot deformity, these were not endorsed by the same medical provider in a prior July 2011 medical record or in subsequent September 2011 and December 2011 private medical records. Additionally, January 2012 private imaging documented a conclusion of a satisfactory examination following left knee arthroplasty. Thus, the Veteran has current right foot disabilities other than pes cavus and status post fracture with traumatic arthritis of the right foot, best characterized as right foot hammertoes, left foot disabilities other than pes cavus, of left foot degenerative arthritis, and hammertoes, and a left knee disability best characterized as degenerative joint disease, as endorsed by the June 2011 VA examiner, and as such the issue before the Board becomes whether these disabilities are as a result of his active service. However, while the Veteran has arthritis of the left foot and degenerative joint disease of the left knee, which are chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309(a), these did not manifest to a compensable degree within the presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Specifically, the Veteran has not reported his arthritis of the left foot or degenerative joint disease of the left knee onset during service and continued after service, or that either onset within one year after separation from service. Further, the Veteran’s post service medical records do not reflect degenerative arthritis of the left foot or degenerative joint disease of the left knee until many years after separation from service. As to the Veteran’s degenerative arthritis of the left foot, a March 1997 private medical record noted that x-rays were taken for evaluation and a subsequent March 1997 private medical record documented, in part, the x-rays were reviewed with the Veteran and it was noted the he had surgery on the right foot about 10 or 12 years ago for a bone chip and had a very cavus type foot, particularly the right foot and lesser of a cavus foot on the left. However, degenerative arthritis was not indicated in the March 1997 private medical record. Thereafter, a February 1999 private medical record noted, in part, the Veteran presented with painful feet and ankles, the left foot was swollen probably two sizes bigger than the right, he had a very cavus foot deformity with a marked amount of plantar fasciitis and ankle pain and also noted there were probably some degenerative arthritic changes. As to the Veteran’s degenerative joint disease of the left knee, an April 2010 private medical record noted, in part, with increase in activity level, the Veteran had noted increase in left knee symptoms and approximately one week ago, he reported the onset of moderate to severe left knee pain and some swelling and April 2010 imaging provided a conclusion of moderate degenerative joint disease left knee with lateral knee joint compartment narrowing and mild valgus deformity. Consistent with such, a September 2010 private medical record documented, in part, the Veteran started having left knee pain in the early part of 2010. Thus, the first clinical evidence of degenerative arthritis of the left foot was provided in a February 1999 private medical record, which was over 25 years after the Veteran’s separation from service and the first clinical evidence of degenerative joint disease of the left knee was provided in an April 2010 private medical record, which was over 36 years after the Veteran’s separation from service. While not dispositive, the passage of so many years between discharge from active and objective documentation of a disability is a factor that weighs against a finding of service incurrence and continuity. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, as described above, the evidence of record does not demonstrate degenerative arthritis of the left foot or degenerative joint disease of the left knee since separation from service or for many years thereafter. The Board’s reliance on multiple factors, only one of which is an absence of complaints of, or treatment for, tinnitus during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as applicable precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, review of the Veteran’s service treatment records does not reflect documentation of complaints related to a left foot disability other than pes cavus or a left knee disability. However, as discussed above, the Veteran’s service treatment records document right foot complaints. In this regard, Board finds that if the Veteran had experienced symptoms related to his left foot or left knee, while in service, such would have been demonstrated within his service treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Thus, for these reasons, the criteria for presumptive service connection for degenerative arthritis of the left foot and degenerative joint disease of the left knee based on chronic symptoms in service, continuous symptoms since service, or that either disability manifested to a compensable degree within one year of service separation, have not been met. Service connection for a right foot disability other than pes cavus and status post fracture with traumatic arthritis of the right foot, best characterized as right foot hammertoes, a left foot disability other than pes cavus, best characterized as left foot degenerative arthritis and hammertoes, and a left knee disability, best characterized as degenerative joint disease, may still be granted on a nonpresumptive direct incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hammertoes, left foot degenerative arthritis, and left knee degenerative joint disease and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the June 2011 VA examiner opined that people with high arches were prone to developing significant foot problems and knee problems. The June 2011 VA examiner further opined that the Veteran’s left knee condition was probably secondary to the Veteran’s high arches and foot problem and was not related to the military. The June 2011 VA examiner further explained that that a cavus foot was often caused by neurological disorder or other medical conditions such as cerebral palsy, Charcot-Marie-Tooth’s disease, polio or spina bifida and the symptoms were manifested as hammertoes, claw toes, calluses on the ball of the foot, pain when standing and walking, unstable foot with the heel tilting inward. Based on this, the June 2011 VA examiner stated that this Veteran’s current feet and knee conditions were in no way related to the service. The May 2016 VA examiner only diagnosed bilateral pes cavus and status post fracture of the right foot but generally found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, which also generally weighs against the claims. Additionally, the May 2016 VA examiner provided a February 2018 opinion which indicated as the Veteran’s right foot disability was not aggravated by service no opinion was provided for the left foot disability or left knee disability as secondary to a right foot disability. The Board finds the June 2011 VA examiner’s opinion, which essentially found the Veteran’s foot bilateral disabilities were related to his bilateral pes cavus in that they stemmed from a common etiology, other than service, and that his left knee disability was secondary to his foot disabilities, to be probative. The June 2011 VA examiner explained the reasons for his conclusions based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data. Thus, this opinion is entitled to substantial probative weight. See Nieves Rodriquez, 22 Vet. App. at 304. Additionally, while June 2011 VA examiner did not use the equipoise standard or address the claims on direct incurrence basis, the standard for VA to obtain another opinion for these claims was not satisfied. In this instance, the most probative evidence weighs against the any in-service diagnoses or complaints related to bilateral hammertoes, left foot degenerative arthritis, and/or left knee degenerative joint disease, and thus, the second element of a claim for service connection, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease is not met. Thus, another VA examination or a medical opinion for these claims is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Further, there is no medical evidence contrary to the June 2011 VA examiner’s opinion. Thus, although the Board recognizes the Veteran’s bilateral hammertoes, left foot degenerative arthritis, and left knee degenerative joint disease, may be related to the Veteran’s bilateral pes cavus in that they may stem from a common etiology, as entitlement to service connection for pes cavus of the right and left feet were denied in the above decision, service connection as secondary to pes cavus of the right foot and/or pes cavus of the left foot cannot serve as a basis for the grant of benefits sought here. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, as discussed above, the evidence of record does not contain in-service incurrence or aggravation of an injury or disease, or a medical opinion finding a causal link between the Veteran’s bilateral hammertoes, left foot degenerative arthritis, and a left knee degenerative joint disease, and in-service incurrence or aggravation of an injury or disease. Accordingly, service connection for bilateral hammertoes, left foot degenerative arthritis, and left knee degenerative joint disease on a direct-incurrence basis is denied. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claims, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. Accordingly, service connection is not warranted for a right foot disability other than pes cavus and status post fracture with traumatic arthritis of the right foot, best characterized as right foot hammertoes, a left foot disability other than pes cavus, best characterized as left foot degenerative arthritis and hammertoes, and a left knee disability, best characterized as degenerative joint disease. Michael Sanford Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.