Citation Nr: 20028859 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 09-15 426A DATE: April 24, 2020 ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. FINDINGS OF FACT 1. The Veteran’s right ankle disability did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 2. The Veteran’s right foot disability did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 3. The Veteran’s left foot disability did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2007 and March 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued remands in November 2010, August 2014, and October 2017 for further development, specifically for updated VA treatment records and for new VA examinations and medical opinions. The Board finds that VA followed the remand instructions properly, and the issues are properly before the Board for adjudication. The Board notes that the October 2017 Board decision remanded the issue of TDIU. In October 2017 and October 2019 rating decisions, VA granted the Veteran TDIU. Moreover, in the October 2019 SSOC, VA did not present TDIU as one of the issues. Therefore, the Board finds that the issue of TDIU is not before the Board because VA has already granted it to the Veteran. The Veteran testified at a Board video conference hearing in September 2010. The Veterans Law Judge who presided over the hearing has retired. In November 2019, the Board sent the Veteran a letter notifying him that he is entitled to a new hearing if he so chooses. The letter explained that if he did not respond within 30 days since the letter, the Board will assume that he does not want another hearing and will proceed with adjudicating his case. The Veteran has not responded since this letter. The Board sent a second duplicate letter in April 2020. The second letter was sent in error and the Veteran’s failure to respond to the first letter constitutes a withdrawal of a new hearing. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left ankle disability 2. Entitlement to service connection for a right foot disability 3. Entitlement to service connection for a left foot disability The Veteran asserts that his left ankle and bilateral foot disability began in service. Specifically, that due to the multiple parachute jumps he performed during service caused all three disabilities. He explained that he did not seek treatment nor suffered from a fracture with either his ankles or feet during service. The Veteran’s entrance and separation examinations are silent for any ankle or foot pain or disability. There is one instance, in March 1964, where the Veteran had a blister on the left posterior heel secondary to rubbing off boots, which became a superficial ulceration and developed a mild cellulitic condition. There was no evidence that the Veteran sought further treatment and so it resolved without any complications. Post-service treatment records reflect complaints of left ankle and bilateral ankle pain in 2007. In an April 2007 VA examination, the Veteran reported bilateral ankle pain and swelling. He explained that he participated in about 28 parachute jumps and believes the jumps and the landings caused him to suffer some minor injuries like twisting his ankle. He states that the pain has gradually increased since he left the military and that he finds that he is unable to stand or walk for long periods of time without needing to take a break. He also reports having a sharp pain in the heel of his left foot and in the balls of his feet. He was diagnosed with bilateral ankle pain and swelling. The examiner noted that the Veteran had a blister on his posterior heel secondary to rubbing of boots, which became a superficial ulceration and developed into a mild cellulitic condition. It was resolved without complication. In this examination, the Veteran reported heel pain that had its onset in 1998. The Veteran reported that he first noticed the pain in the heel on occasion starting in 1998. The pain has increased in intensity, frequency, and duration over the last several years. The pain is sharp in nature. He also complained of pain in the ball of his feet since 1987. He reported having sharp stabbing pain in the great toe joint which occurred randomly and occasionally over the last 20 years. The Veteran reported having left foot pain while standing and walking but did not report any right foot pain. The Veteran related the limitations to standing and walking were due to his knee pain and not his foot pain. The examiner opined that the Veteran’s left foot disability is not caused by or a result of the left posterior ankle ulceration and cellulitis since an abrasion with resultant localized cellulitis which resolved without complication could not have caused the biomechanical conditions of which the Veteran now complains. The examiner reported that his current feet disabilities include hallux limitus and plantar fasciitis, both of which are biomechanical in nature and are caused by the Veteran’s foot type and not by a superficial injury and infection to his skin sustained about 40 years ago. Then in a July 2007 VA examination, the Veteran reported that he started to notice ankle pain approximately five years ago without a precipitating event. He denied any ankle injury and claimed that the pain is worse on the left ankle. The pain is aggravated by walking and has worsened over the years. He was diagnosed with bilateral ankle pain likely secondary to an ankle sprain. The bilateral ankle x-ray report showed no acute fracture or dislocation. Then in a February 2008 VA examination, the Veteran complained of bilateral ankle pain since the late 1970s. He denied any injury or trauma to his ankles. He reported that the pain is aggravated by walking and that they intermittently swell. The bilateral ankle X-rays in July 2007 were unremarkable. He also complained of pain at the base of the let big toe for approximately five years. He reports that there was no injury or trauma to his left foot. He was diagnosed with left first metatarsophalangeal joint osteoarthritis and he had an unremarkable bilateral ankle examination. The examiner opined that based on the history, physical examination, and the imaging studies, the Veteran’s current bilateral ankle and left disabilities are less likely as not a result of his military service. He reasoned that there was no documented injury or trauma to his ankles or left foot in service. While he did have an ulceration and cellulitis of the Achilles tendon, it had resolved. The examiner did not think that the left foot ulcer and cellulitis contributed to his osteoarthritis at the first metatarsophalangeal joint. He explained that aging plays a significant role in causing degenerative changes in the left first metatarsophalangeal joint. The pain in the bilateral ankles is likely caused by early degenerative changes in the joints. Again, aging plays a significant role in causing pain in the bilateral ankles. Since then, the Veteran has consistently been reporting bilateral ankle and foot pain. In a June 2011 VA examination, the Veteran reported a bilateral foot disability that began in 1987. He reported sharp stabbing pain in his left foot great toe joint and on the bottom of his right foot. He reported that this occurs randomly and occasionally over the last 20 years and that the frequency has increased since taking a medication which he believes has caused him gout in his feet. The X-ray results showed mild hallux valgus, pes planus, and degenerative osteoarthritic changes in both his feet. The examiner opined that it is as least as likely as not that the Veteran bilateral foot disability was caused by or a result of active duty since even though multiple parachute jumps can cause additional stress to foot joints, the natural degenerative process of joints has to be taken into consideration. The osteoarthritis seen in both first metatarsophalangeal joint, also known as degenerative or “wear and tear” arthritis, is a common problem for many people after they reach middle age. Over the years, the smooth gliding surface covering the ends of bones becomes worn and frayed. This results in inflammation, swelling, boney lumps, spurs, and pain in the joint. Osteoarthritis progresses slowly and the pain and stiffness it causes worsens over time. In an August 2011 VA examination, the Veteran reported that he participated in 29 parachute jumps while he was in the military. He cannot remember any specific trauma to his ankles, but there were multiple bad landings. None manifested to any fractures. He reported that they started hurting many years ago. The X-rays came out normal. The examiner opined that based on the Veteran’s history and the examination, he believes that the Veteran’s bilateral ankle disability is less likely as not due to his military service since there is no evidence of any severe trauma to his ankles when he was in the military. The May 2016 VA examination diagnosed the Veteran with bilateral plantar fasciitis. The Veteran reported having gout in both feet, but claims the left is worse since it affects his big toe joints. He takes medicine daily to treat his gout. He also has pain on the bottom of both feet, which occasionally flareup. He also has sharp stabbing pain in his left foot great toe joint and on the bottom of his right foot. This has occurred randomly and occasionally over the last 20 years. The Veteran was also diagnosed with left ankle osteoarthritis and bilateral posterior tibial tendon dysfunction with a diagnosis date of May 2016. The Veteran reported the onset of his bilateral ankle pain around 2008 or 2009. He reported that there was no specific injury, but that it gradually increased. The most pain is in the medial ankles—the left more than the right ankle. The pain increases with walking and feels better with rest. The examiner opined that the Veteran’s bilateral ankle disability was less likely than not incurred in or caused by service since even though the Veteran reports multiple parachute jumps during military, there was no specific ankle injuries. The examiner also pointed out that the Veteran reported onset of ankle pain around 2008 or 2009, which is about 40 years after service. It is unlikely that any injury suffered during service caused pain 40 years later without any intervening symptoms. Additionally, the Veteran’s pathology appears to be primarily age-related degenerative process. In a March 2017 VA addendum opinion, the examiner explained that they reviewed all of the Veteran’s X-ray thoroughly and they show degenerative changes absolutely consistent with the natural aging process. His degenerative changes and plantar fasciitis do not appear consistent with traumatic injury caused by parachute landings 50 years ago. The examiner noted that the Veteran has on and off gout, which is also consistent with diet and aging and is not caused by any medication. The examiner opined that the ankle or foot disabilities shown at any time since 2006 are not at least as likely as not related to the Veteran’s active service and agrees with the rationale of the previous examiner that it is unlikely that any injury suffered during military service caused pain 40 years later without any intervening symptoms. The examiner further reported that he reviewed all the X-rays done on the feet since April 2007 and the arthritis shown in the radiologic studies are consistent with age-related changes and that represents natural progression. Thus it is not at least as likely as not that each disability was caused or aggravated by the other disabilities and there is no evidence of aggravation of service connected conditions. The Board finds that the Veteran’s current bilateral foot and right ankle disabilities are not etiologically related to his military service. Although his STRs note an instance where he had problems with his left foot, there was no further treatment for it in service nor was any disability noted upon his separation from service. Nor is there any evidence that any foot or ankle disability manifested to a compensable degree within one year of separation. Although the Board acknowledges that the Veteran reported an injury in service, there is no documentation in his STRs regarding a diagnosis of any foot or ankle disability or injury. Nor was there any chronic complaint of pain for either disabilities. The Board finds that the probative value of the medical records outweighs the Veteran’s recollections regarding his bilateral foot and right ankle pain, and that his recollections lack credibility in this regard. Thus, the earliest competent and credible evidence indicating the presence of any foot or ankle disability is many years after the Veteran’s separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record does not contain any medical opinion indicating that the Veteran’s bilateral foot or right ankle disability incurred in or otherwise is related to active service. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. Under the facts of this case, given the largely silent STRs, the absence of any credible evidence of a bilateral foot or right ankle problems until many years after service, and the multiple potential etiologic factors that accompany such a long period following service, the Board finds that the matter of determining the etiology of the bilateral foot and right ankle disability is more suitable to medical rather than lay expertise. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a bilateral foot and right ankle disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate 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.