Citation Nr: 20020522 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 17-24 027 DATE: March 19, 2020 ORDER Service connection for a back disability is denied. Service connection for a left foot disability is denied. Service connection for a right foot disability is denied. FINDINGS OF FACT 1. The Veteran does not have a back disability that was caused by his service. 2. The Veteran does not have a left foot disability that was caused by his service. 3. The Veteran does not have a right foot disability that was caused by his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 3.309. 2. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 3.309. 3. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to May 1983. In a statement received in February 2020, the Veteran withdrew his request for a hearing. Accordingly, the Board will proceed without further delay. See 38 C.F.R. § 20.702 (e). Service Connection The Veteran asserts that he has a back disability, a left foot disability, and a right foot disability due to his service. He argues that he received two weeks of physical therapy during basic training (the condition for which he received physical therapy was not specified), with additional treatment during service in Germany. See Veteran’s notice of disagreement (VA Form 21-0958), received in February 2016. He further states that, “For many years after ending with the U.S. Army I have had these conditions.” See Veteran’s appeal (VA Form 9), received in May 2017. He states that his job as a combat medic included performing duties as an infantryman. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted on the basis of a post-service initial diagnosis of a disease, when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” See 38 C.F.R. § 3.303 (d). Congenital or developmental defects, as such, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). The Veteran’s service treatment records do not show any relevant complaints, findings, or diagnoses, with the following exceptions: In February 1979, during basic training, the Veteran was treated for complaints of bilateral foot pain. In February 1980, the Veteran was treated for complaints of pain in his bilateral feet and low back. The report is somewhat difficult to read, but it appears to note that his symptoms were secondary to a congenital malformation of the tarsals and metatarsals. On examination, his left leg was ½-inch shorter that his right leg. He was noted to have a “short” left foot joint. He was provided with a heel lift for his left foot. It was noted that he was to return for follow-up treatment in one month, with no subsequent evidence of such treatment. In July 1980, he sprained his left ankle. The Veteran’s separation examination report, dated in April 1983, shows that his feet, spine, and lower extremities, were clinically evaluated as normal. As for the post-service medical evidence, VA progress notes show treatment for complaints of foot symptoms beginning in 2015. They include notations of plantar fascial fibromatosis, bilateral peroneal tendonitis of the legs, low back pain, lumbago with sciatica, lesion of plantar nerve of the bilateral lower limbs, arthritis of the left ankle and foot, left foot hallux valgus, tarsal tunnel syndrome, and gout. The Veteran was provided with insoles and a left ankle brace. His treatment also included cortisone injections. It was noted that he was retired from the Port Authority after 20 years as a security guard per a September 2015 report. Private treatment records, dated in 2016, note bilateral pes planus with Achilles tendon contracture, ankle equinus, medial cuneiform deviation, and cuboid abduction. An X-ray for the right foot noted arthritic changes at the tarsometatarsal joints. Surgery was recommended. Other private reports, dated in 2018, note pes planus, and low back pain. The Board finds that the claims must be denied. The Veteran was treated for complaints of pain in his low back and feet as late as February 1980, with no subsequent complaints or treatment during his remaining service (ending in May 1983). This is a period of over three years. There were no imaging studies made during service to show pathology of his feet or spine. Accordingly, a chronic condition is not shown during service. See 38 C.F.R. § 3.303 (a), (b). To the extent that the Veteran was noted to have congenital foot defects, there is no medical evidence to show that he has additional disability from aggravation of a congenital or developmental defect involving his feet during service due to a superimposed disease or injury. See VAOPGCPREC 82-90, 56 Fed. Reg. 45, 711 (1990). There is no evidence to show arthritis of either foot, or the back, within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has not specifically claimed to have ongoing and persistent symptoms since his service. It appears that following separation from service, he worked for the Port Authority for 20 years, with no evidence of relevant treatment. The earliest medical evidence of a back disability or a foot disability is dated in 2015. This is about 31 years after separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent opinion of record in favor of any of the claims. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the Veteran’s statements. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex. The complex question of whether the Veteran has any of the claimed conditions that had its onset during his service requires medical expertise. As such, the lay statements are insufficient to provide the requisite nexus, because determining whether or not the Veteran had any of the claimed conditions during service requires medical training and expertise. Id. (Continued on the next page)   As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.