Citation Nr: 21001043 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-59 969 DATE: January 6, 2021 ORDER Entitlement to service connection for a right foot disability, variously diagnosed, to include bunions, callouses, hallux valgus, plantar fasciitis, capsulitis, not otherwise specified (NOS), of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritis-osteophytic spurring of the 2nd metatarsal, and osteoarthritis, is denied. Entitlement to service connection for a left foot disability, variously diagnosed, to include bunions, callouses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint, is denied. Entitlement to service connection for a skin disability, to include contact dermatitis, is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have a right foot disability that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to her military service. 2. The Veteran has not been shown to have a left foot disability that manifested in service or is otherwise causally or etiologically related to any disease, injury, or incident during service. 3. The Veteran has not been shown to have a current skin disability, to include contact dermatitis, that manifested in service or that is otherwise related to her military service. CONCLUSIONS OF LAW 1. A right foot disability was not incurred in active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1995 to June 1995, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from August 1994 to July 2003 in the United States Army Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The claim for entitlement to service connection for a skin disability was remanded for further development in December 2018. That development has been completed, and the case has since been returned to the Board for appellate review. In the December 2018 decision, the Board also denied the claims for service connection for left and right foot disabilities. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) and vacated the portion of the December 2018 Board decision that denied service connection for left and right foot disabilities. The Joint Motion directed that a new examination or opinion be obtained as to the foot disability issues and that the Board provide an adequate statement of reasons and bases for its decision. In an October 2019 Board decision, the claims for service connection for left and right foot disabilities (bilateral foot disability) were remanded for further development, including a new VA examination. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The December 2020 Post-Remand brief quoted extensively from July 2020 VA examiner’s opinion but did not allege that the opinion was inadequate. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a right foot disability, variously diagnosed, to include bunions, callouses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritis-osteophytic spurring of the 2nd metatarsal, and osteoarthritis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for a right foot disability is not warranted. The Veteran alleges that she has a right foot disability due to military service, specifically, that the boots she was given during basic training were too small, which she believes caused bleeding and numbness. She also described instances during which her feet and boots were saturated with water. The record indicates that the Veteran has a current right foot disability, variously diagnosed as listed above. See December 2018 Board decision. In addition, the service treatment records document complaints of blisters on both feet and a reported history of nerve damage to the right toes. The Veteran was diagnosed with blisters of both feet and denuded skin secondary to friction, but there was no clinical diagnosis of nerve damage. See March 1995 service treatment records. Initially, the Board notes that neither arthritis nor manifestations sufficient to identify the disease entity are shown during active service. The pertinent regulations require that manifestations are “noted” in the service records and that is not the case in this instance. Therefore, while arthritis is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and degenerative arthritis may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no objective x-ray evidence of arthritis within one year of the Veteran’s active duty service. She was first diagnosed with osteoarthritis in December 2016. In fact, there is no medical evidence pertaining to a chronic right foot disability for many years after active service. In November 2008, she complained of right fifth toe pain for about one week and denied any specific trauma. In October 2009, she reported injuring the right foot when she dropped a stationary bike on it three weeks earlier. Similarly, a May 2010 treatment record documents the Veteran’s report that she injured her right foot in October 2009 by dropping an exercise bike on it, and she further explained that the right foot never fully healed and she reinjured it over the weekend when she dropped trampoline parts on the same foot. She did not report any right foot problems prior to the 2009 injury. An October 2013 treatment record notes “long-standing foot pain” but the duration of the pain was not characterized. The Board does acknowledge the Veteran’s statements that she injured her right foot during basic training and has had right foot problems since that time. Lay persons are competent to report observable symptoms, such as problems since the Veteran’s military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report an injury in service and symptoms since that time, the Board finds that such statements regarding the continuity of symptomatology are not reliable or credible. As stated above, there are no complaints of right foot pain in the post-service medical records until November 2008, when she complained of right fifth toe pain for approximately one week. The October 2009 and May 2010 medical records document post-service right foot injuries, but she did not report any right foot problems prior to the 2009 injury. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). If the Veteran had been experiencing continual foot problems since service, it is expected that this history would have been documented when seeking treatment for her feet. The November 2008 and October 2009 radiology reports revealed mild hallux valgus of the metatarsal head of the right great toe but found no acute abnormality. Instead, a February 2015 and March 2016 medical record notes chronic foot pain dating back to her time on active duty when she developed immersion and localized nerve palsy from tight combat boots, but this appears to be the Veteran’s own reported history rather than an independent medical finding. See LeShore v. Brown, 8 Vet. App. 406 (1995). (Mere transcription of medical history does not transform information into competent medical evidence.) For these reasons, the Board concludes that the weight of the competent, credible, and probative evidence shows that a right foot disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that the claimed disability manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran’s military service. Following remand, the Veteran was afforded another VA examination in December 2019 in connection with her claim at which time she was diagnosed with hammertoes, bilaterally and plantar fasciitis, bilaterally. X-rays of the feet revealed surgical screws in the right foot but were otherwise normal. The examiner opined that the Veteran’s bilateral foot disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged the history of blisters on both feet during service. The examiner also noted the reported history of shoes that were too small and symptoms at time of onset in 1995 described as blisters, swelling, bleeding, pain and tenderness. However, the examiner stated that the Veteran’s hammertoe condition likely developed after service as hammertoe and mallet toe are foot deformities that occur due to an imbalance in the muscles, tendons or ligaments that normally hold the toe straight. The type of shoes worn, foot structure, trauma and certain disease processes can contribute to the development of these deformities. Therefore, the examiner determined that the Veteran’s current bilateral foot disability is less likely than not related to military service. The AOJ obtained an addendum medical opinion from a different examiner in July 2020. The examiner noted the complaints of blisters on both feet in service due to boots that were too small. The examiner opined that it is less likely than not that any of her currently diagnosed conditions were incurred in or caused by military service to include footwear that was too small or saturated with water for long periods of time. He explained that tight shoes and saturated footwear would not cause her diagnosed bilateral foot disabilities including hammertoes, plantar fasciitis, Morton neuromas, bunions, hallux valgus, etc., that occurred thirteen years after her five-month period of active service. He stated that while the medical literature does discuss ill-fitting footwear as a possible factor in developing hammertoes and hallux valgus, the short-term exposure to ill-fitting footwear and the latency period of over thirteen years before the conditions were identified would not support a nexus. The examiner conceded that the friction blisters and callous noted during active service were at least as likely as not caused by improperly fitting footwear; but both the blisters and callous were transient conditions. The next mention of callouses in the post-service medical records was fifteen years later. The friction blisters and callous appear to have developed a second time, independent of the first occurrence during service. The July 2020 examiner opined that it is less likely than not that any of the mechanical problems with her feet, to include hallux valgus, hammertoes, capsulitis, arthritis, plantar fasciitis and bunions were incurred in or caused by military service. Wet boots do not have the capacity to induce any podiatric condition except possible dermatological conditions. Ill-fitting boots caused the transient friction blisters and callous. Every other foot condition occurred years after active service and with no continuum of care for any mechanical foot problem. See July 2020 VA addendum medical opinion. The July 2020 examiner addressed the etiology of each of the Veteran’s diagnosed foot conditions, including hallux valgus, bunions, hammertoes, plantar fasciitis and Morton’s neuroma. He stated that her hammertoes appear to be due to a combination of developmental issues as well as the post-service injuries to the right foot when a stationary bike and trampoline parts were dropped on it. The capsulitis and arthritis are related to the hammertoes condition. Morton’s neuroma is due to the hammertoes and bunions of the right foot. Plantar fasciitis was diagnosed for the first time many years after active service and is typically caused by mechanical dysfunction due to alerted arches, obesity, and biomechanical issues involving the mid-foot. Factors that increase the risk of developing plantar fasciitis include age over 40, certain types of exercise that place a lot of stress on the heel and attached tissue, foot mechanics, and obesity. See July 2020 VA addendum medical opinion. There is no medical opinion otherwise relating a current right foot disability to the Veteran’s military service. The Board has considered the Veteran’s lay statements that her current right foot disability is related to her military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the July 2020 VA examiner’s opinion is more probative, as it was based on a review of the claims file, including the Veteran’s own reported history and lay statements, and is supported by rationale. The VA examiner also relied on his own knowledge, training, and expertise as a medical professional. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a right foot disability. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a right foot disability is not warranted. 2. Entitlement to service connection for a left foot disability, variously diagnosed, to include bunions, callouses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left foot disability. The Veteran has a current diagnosis of a left foot disability, to include hammertoes, hallux valgus, capsulitis, plantar fasciitis, and bunions. See December 2018 Board decision. The Veteran has claimed that her current left foot disability is related to wearing boots that were too small during basic training, which she believes led to bleeding and numbness. She has also described instances during which her boots and feet were saturated with water. The service treatment records document complaints of blisters on both feet. She was diagnosed with blisters on the right and left feet and denuded skin secondary to friction. As the Veteran has a current diagnosis of a left foot disability and there is evidence of an in-service injury, the only remaining issue is a nexus with service. The post-service medical records do not document any complaints or treatment for foot problems until November 2008, which was approximately thirteen years after her active duty service. In November 2008, she complained of right fifth toe pain for about a week and denied any trauma. Notably, in the November 2008 medical record the Veteran did not report any left foot problems, only the right foot. An October 2013 medical record described longstanding foot pain but the duration of the pain was not characterized. February 2015 service treatment records indicate diagnoses of left foot hallux valgus and bunion. For these reasons, the Board concludes that the weight of the competent, credible, and probative evidence shows that a left foot disability did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran’s military service. As set forth above, following remand, the Veteran was afforded another VA examination in December 2019. The examiner noted the history of corns and blisters on her feet during active service and the Veteran’s statement that the condition began in service because her shoes were too small. The examiner diagnosed the Veteran at that time with hammertoes and plantar fasciitis but opined that they were less likely than not related to service. The examiner observed that the service treatment records did not document hammertoes during active service and the condition likely developed after service. See December 2019 VA examination report. An addendum opinion was obtained in July 2020 and, as detailed above, the examiner opined that the Veteran’s left foot disabilities are less likely than not related to service, including improperly fitting footwear and wet boots. The examiner explained that other than friction blisters and callouses, which were transient and apparently resolved, her diagnosed left foot conditions would not be caused by tight footwear or wet boots. See July 2020 VA addendum medical opinion. There is no medical opinion otherwise relating a current left foot disability to the Veteran’s military service. The Board has considered the Veteran’s lay statements that her current left foot disabilities are related to her military service, including boots that were too tight and wet feet and boots. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disabilities, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of her left foot disabilities is not competent evidence and, consequently, is afforded no probative weight. Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the VA examiner’s opinion is more probative, as it was based on a review of the claims file, including the Veteran’s own reported history and lay statements, and is supported by thorough rationale. The VA examiner also relied on his own knowledge, training, and expertise as a medical professional. Moreover, the Board finds the Veteran’s reports that she began experiencing foot pain in service that has persisted to the present lack credibility. Specifically, as stated above, the November 2008 medical record documents complaints of right fifth toe pain for approximately one week without any specific trauma; she did not report any left foot problems at that time. There was evidence of intercurrent injuries to the right foot in October 2009 and May 2010, but she never mentioned any left foot pain. The medical records do not indicate complaints, diagnosis or treatment for left foot problems until 2015, many years after active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for condition can be considered as one factor in resolving claim). If the Veteran had been experiencing ongoing left foot pain, it is reasonable to expect that she would have complained of such when seeking treatment for the opposite foot. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a left foot disability. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left foot disability is not warranted. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to service connection for a skin disability, to include contact dermatitis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a skin disability. The service treatment records document complaints of a rash on both feet in January 1995. She was diagnosed with wool sensitivity and instructed to stop using wool products including wool socks. In July 1995, she complained of poison ivy on the top of both feet. She was diagnosed with poison ivy, resolving, and instructed to use hydrocortisone cream. The Veteran has alleged that she had contact dermatitis during basic training and suffers from it yearly. See December 2016 correspondence. She was afforded a VA examination in connection with the claim for entitlement to service connection for a skin disorder in October 2015. The examiner found that she did not have a current diagnosis of a skin disorder but also noted that she had been using topical corticosteroids to treat a rash on her feet within the past 12 months. Subsequent medical records indicated diagnoses of dermatitis on the left chin/cheek, seborrheic keratosis on the anterior neck, and melanocytic nevi, unspecified, on the left jaw line. See January 2016 treatment record. In March 2016, it was noted that she had a hyperkeratotic lesion on the lateral right 4th digit. In December 2018, the Board remanded the claim for a nexus opinion. Another VA examination was conducted in October 2019. The examiner noted the history of a rash on both feet and poison ivy during active service. She reported current symptoms including a rash on her back, arms, eyelids, buttocks, and scalp. The examiner diagnosed dermatitis with flaking and dry patches covering approximately 1 percent of total body area. The examiner opined that her current dermatitis condition is less likely than not incurred in or caused by the rash on both feet during service. He explained that there is no direct pathophysiologic relationship between the rash on her feet and poison ivy during service in 1995 and the unspecified dermatitis diagnosed in 2016. He noted that the dermatitis diagnosed in January 2016 was thought to be related to the Veteran’s hypothyroidism/xerosis. He also observed that there are no records showing a continuation or progression of the rash in-service or records showing a relationship between the skin conditions during service and her current dermatitis. Therefore, it is less likely than not that the claimed skin conditions to include dermatitis were incurred in or caused by the Veteran’s rash on both feet during active service. See October 2019 VA examination report. There is no medical opinion otherwise relating a skin disability to the Veteran’s military service. The Board notes that the Veteran has alleged that her skin disorder is the result of military service, to include the rash on both feet. The Veteran is competent in this case to provide evidence regarding her symptoms. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of skin disorders and whether or not such a disorder was caused by her service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Contrary to her assertions, she was not diagnosed with contact dermatitis during active service and the rash on her feet was attributed to a wool allergy. There was no record of any follow-up treatment and it apparently resolved. Moreover, even assuming the Veteran’s lay assertions regarding etiology were competent, the Board nevertheless finds the October 2019 VA examiner’s opinion to be more probative, as it is based on a review of the record and the examiner’s medical expertise. The examiner provided an adequate rationale in support of his negative nexus opinion. For the reasons outlined above, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for a skin disability, to include dermatitis. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.