Citation Nr: 21000907 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-10 888 DATE: January 6, 2021 ORDER Service connection for a bilateral foot disability is denied. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Pes planus was noted upon the Veteran’s entrance into active duty, and the preponderance of the evidence is against a finding that the Veteran’s pes planus was aggravated by service or that any other current left or right foot disability was incurred in or caused by service or a service-connected disability. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to March 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were most recently before the Board in March 2020, at which time they were remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that the Veteran’s claim for service connection for a bilateral foot disability was remanded in March 2020 because the medical opinions obtained in December 2019 were not provided by a podiatrist, as required by prior remand instructions. However, in July 2020, the internist who authored the December 2019 VA examination report clarified that the medical opinions in that report were actually provided by the VA podiatrist who is referenced within the report. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from the 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 disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder but may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153. A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Where a preexisting condition was noted upon entry into service, the veteran has the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the veteran establishes worsening in service, then the disability is presumed to have been aggravated in service, and the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2012). 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 U.S.C. § 1153; 38 C.F.R. §§ 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). “Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Finally, service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a bilateral foot disability The Veteran seeks service connection for a bilateral foot disability, including pes planus, osteoarthritis, hallux valgus, plantar fasciitis, and calcaneal spurs, which he asserts were incurred in or caused by service, or alternatively, were caused or aggravated by his service-connected knee disabilities. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current left or right foot disability was caused or aggravated by service or a service-connected disability. Service treatment records show that the Veteran was noted to have second degree pes planus during a December 1952 pre-induction physical examination. In April 1953, the Veteran complained that his feet were sore, and he was diagnosed with a foot strain. To the extent that the Veteran claims to have had continued foot pain since service, the Board finds that such assertions are not consistent with the evidence of record. A March 1955 report of medical examination shows that the Veteran’s feet were normal upon his discharge from active duty, and no foot problems were noted. Thereafter, a June 1969 VA examination report did not mention any foot problems. The record shows no complaints of treatment for foot pain for nearly 40 years after service, despite records showing treatment for other orthopedic conditions. An April 1996 letter from a private podiatrist to the Veteran’s former employer indicates that the Veteran walked on concrete floors wearing steel-toed boots for about eight hours a day, and he began treating the Veteran for painful feet about two-and-a-half years earlier. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). A January 2011 private treatment record shows that the Veteran’s physician advised him that he did not believe that his knees were the cause of his foot problems. The Veteran submitted a January 2015 opinion from a private physician who opined that it was more likely than not that the Veteran’s pes planus was aggravated by service. In support of this, the physician explained that the Veteran’s foot pain began during service and continued ever since. However, the Board assigns little probative value to that opinion, as it is based on the Veteran’s reports of continued foot pain since service, which the Board has already found lacks credibility. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). The Veteran underwent a VA examination in August 2015, and the examiner opined that it was less likely than not that the Veteran’s preexisting pes planus was permanently aggravated by his active duty service or that a current foot disability was incurred during service. In support of this, the examiner explained that the August 1953 in-service foot strain was a self-limiting condition with no sequelae, as the Veteran’s feet and lower extremities were found to be normal upon his discharge from active duty. In September 2016, a VA examiner reviewed the evidence of record and opined that the Veteran’s pes planus was not worsened beyond normal progression by his service-connected left knee disability. However, the Board assigns little probative value to this opinion, as it is not supported by an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Veteran underwent another VA examination in July 2018, during which the examiner indicated that the Veteran had diagnoses of pes planus, hallux valgus, bilateral osteoarthritis, and bilateral calcaneal spurs. The examiner reviewed the evidence of record and opined that that the Veteran’s pes planus was not worsened beyond normal progression by his service-connected left knee disability. However, in December 2018, the Board already found that this opinion lacked probative value because the examiner did not address all of the Veteran’s diagnoses or the Veteran’s right knee disability, which was eventually service connected. The Veteran underwent VA foot and ankle examinations in July 2019, during which he stated that the April 1953 foot strain was actually a right ankle sprain. The examiner opined that the Veteran’s preexisting pes planus was aggravated was not aggravated by his military service. In support of this, the examiner explained that the Veteran asserted that the April 1953 notation of a foot strain was actually a right ankle sprain, and the Veteran’s March 1955 separation examination showed that his feet were normal. The examiner further explained that even if the April 1953 notation was a foot strain, that would not cause aggravation of his preexisting pes planus, as it is a self-limited condition that would resolve without residuals in a matter of weeks to a couple of months. The examiner also noted that although the Veteran had current diagnoses of plantar fasciitis, heel spurs, bunions, and arthritis, none of those conditions were related to service, as they were diagnosed decades after service. The examiner also opined that it was less likely than not that his current foot diagnoses were caused or aggravated by his service-connected knee conditions, to include any gait disturbance caused by knee conditions. The Veteran underwent another VA examination in December 2019, and a podiatrist reviewed the evidence of record and opined that it was less likely than not that the Veteran’s preexisting pes planus was aggravated during service. In support of this, the podiatrist explained that foot strains are very common, temporary conditions, and there were no foot conditions noted on the Veteran’s March 1955 separation examination to suggest that the condition was not self-limiting. The podiatrist also acknowledged a statement from the July 2018 VA examiner than pes planus may be impacted by repetitive high impact sports, such as running; however, there was no evidence in the record to suggest that such was the case here. The examiner opined that it was less likely than not that the Veteran’s foot disabilities were caused or aggravated by his service-connected knee disabilities, including any gait disturbance. In support of this, the podiatrist explained that he was not aware of any medical literature indicating that knee disabilities cause or progress foot disabilities. The Board finds the December 2019 opinions of the VA podiatrist to be highly probative and persuasive, as they were provided by a practitioner who specializes in foot disabilities and supported with reasoned medical explanations based on a review of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Although the Veteran believes that his foot disabilities were caused or aggravated by service, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, question of whether pes planus underwent an increase in severity during service and/or the etiology of foot disabilities that began many years after service are not matters capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran is not competent medical evidence. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 2. Entitlement to TDIU Throughout the appeal period, service connection has been in effect for degenerative arthritis of the left knee, status post left knee replacement, rated as 60 percent disabling; degenerative arthritis of the right knee, status post right knee replacement, rated as 50 percent disabling; and degenerative arthritis of the right ankle, rated as 10 percent disabling. With the exception of periods of temporary 100 percent ratings for convalescence, the Veteran’s combined disability rating was 80 percent prior to February 23, 2012, and 90 percent beginning April 1, 2013. Thus, the schedular criteria for TDIU have been met. The Veteran has not submitted a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). However, a review of his treatment records reveals sufficient information regarding his education and work history to make a decision on the claim. VA and private treatment records show that the highest level of education attained by the Veteran is a high school diploma. During service, the Veteran worked as a medic and dispensary technician. After service, the Veteran worked as a glazier, a meat inspector, a janitor, and a real estate agent. The Veteran consistently reported that he stopped working around 2008 because his service-connected knee disabilities caused difficulty walking and rendered him unable to climb stairs. The record shows that the Veteran’s service-connected knee disabilities have resulted in chronic bilateral knee pain, swelling, weakness, and limitation of motion, for which he regularly uses a cane for ambulation. His service-connected right ankle disability has resulted in pain and limitation of motion. A May 2013 VA examiner indicated that the Veteran’s knee disabilities would affect his ability to engage in physical employment, but would not preclude some sedentary work. An August 2015 VA examiner opined that some employment with restrictions was possible, but employment which required prolonged sitting, standing, or walking would not be recommended due to the Veteran’s knee disabilities. An April 2017 VA examiner indicated that the Veteran would be limited to sedentary work due to his knee disabilities. A July 2018 VA examiner opined that the Veteran’s knee disabilities would affect his ability to work a job that required prolonged standing, bending, squatting, and stair climbing and descending. A July 2019 VA examiner opined that the Veteran’s service-connected knee and ankle disabilities rendered him unable to do any work that involved standing, walking, or climbing. Given the Veteran’s education and experience working jobs that require prolonged standing and walking, the Board finds that it is at least as likely as not that the combined effects of the Veteran’s service-connected knee and ankle disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. Accordingly, TDIU is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.