Citation Nr: 21003283 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-15 430 DATE: January 21, 2021 ORDER Service connection for a bilateral foot disability, including as secondary to a bilateral knee disability, is denied. Service connection for a bilateral knee disability, including as secondary to a bilateral foot disability, is denied. FINDINGS OF FACT 1. Probative medical evidence indicates the Veteran’s bilateral pes varus with tarsal coalition feet diagnosis is a preexisting congenital defect. 2. There is no probative medical evidence that indicates the Veteran demonstrated a superimposed injury or disease during service indicative of aggravation of his preexisting congenital bilateral pes varus with tarsal coalition feet defect. 3. The Veteran’s bilateral pes varus with tarsal coalition feet is not caused or worsened by a service-connected disability. 4. The Veteran’s bilateral knee osteoarthritis is not caused or worsened by a service-connected disability and is not linked to disease or injury incurred or aggravated in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability, to include bilateral pes varus with tarsal coalition feet, have not been met. 38 U.S.C. §§ 1110, 5107(b) 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310. 2. The criteria for service connection for bilateral knee osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 from October 1965 to February 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in March 2012. Most recently, in June 2020, the Board remanded this matter for further evidentiary development. The Board notes that a September 2020 VA examiner clarified that the Veteran’s disabilities of bilateral peripheral venous insufficiency and right lower leg ischemia grade I incision status post arterial bypass graft are not disabilities of the feet. Accordingly, the Board will only address the Veteran’s diagnosed disabilities of the feet and has recharacterized the issue as shown on the title page. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When a condition is noted during service, or in a presumptive period, but not shown to be chronic at the time, a continuity of symptomatology after service must be shown. Id. When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if it manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Congenital or developmental defects automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection generally may not be granted for congenital or developmental defects, as they are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. The VA Office of General Counsel has held that service connection may be granted for a congenital disease on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). The VA General Counsel’s opinion indicated that there is a distinction under the law between a congenital or developmental “disease” and a congenital or developmental “defect” for service connection purposes. A “disease” considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature pre-exists claimants’ military service, but that service connection for such diseases could be granted only if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990) (finding that “service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service.”). If the disorder is considered a congenital or hereditary “defect,” service connection may be granted for a disability resulting from any superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, andn credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has a bilateral foot disability that was incurred in service and/or secondary to a bilateral knee disability. The Veteran also asserts that a bilateral knee disability was incurred in service and/or secondary to a bilateral foot disability. As an initial matter, the Board notes that service treatment records reflect multiple in-service complaints of bilateral foot pain and a February 1971 certificate of attending physician’s record indicates that the Veteran had been receiving professional treatment for his bilateral feet pain from February 1966. Pursuant to March 2019 remand instructions, the Veteran underwent VA examinations in March 2020; however, in the June 2020 remand, the Board determined that the March 2020 VA opinions were inadequate for several reasons. See June 2020 Board remand. Pursuant to the June 2020 Board remand, VA addendum opinions were obtained in July 2020. The examiner indicated that the Veteran’s bilateral pes varus is a congenital defect. The examiner further indicated that it was less likely as not that there was a superimposed injury or disease in service that resulted in an additional bilateral foot disability. As rationale, the examiner stated that there was no evidence of superimposed injuries or disease during service that could have resulted in additional bilateral foot disability. Further, at the March 2020 examination, no additional bilateral foot disability was found secondary to all other conditions (bilateral peripheral venous insufficiency, and right lower leg ischemia grade I incision status post arterial bypass graft, and bilateral knee osteoarthritis). The examiner also emphasized, It should be noted that tarsal coalition feet is part and parcel of the congenital pes varus defect[;] the coalition is present since early childhood and can become symptomatic during adulthood years[.] The tarsal coalition [does] not represent an aggravation of the congenital pes varus[;] [it is] part of the same condition. Regarding the Veteran’s other claimed disabilities, the examiner explained, that prior VA examinations of the arteries and veins revealed diagnoses of bilateral peripheral venous insufficiency, and right lower leg ischemia grade I incision status post arterial bypass graft, and bilateral knee osteoarthritis. He noted that none of these conditions were found related to military service, or one year after service. Also the bilateral peripheral venous insufficiency and right lower leg ischemia grade I incision status post arterial bypass graft, and bilateral knee osteoarthritis are not anatomically [or] pathophysiologically related to the condition of bilateral foot varus congenital condition. With regard to the Veteran’s diagnosed bilateral knee osteoarthritis, the examiner opined it less likely as not that such had its onset in and/or is otherwise etiologically related to his period of active service. As rationale, the examiner agreed with the March 2020 knee examiner that the knee osteoarthritis is related to the normal atraumatic changes of the aging process. The examiner further commented that the Veteran’s lay statements concerning the bilateral knee pain made during the March 2012 Board hearing were seen and taken into account for the above opinion, despite no evidence of a bilateral knee condition found in the service treatment records—the Veteran’s lay statements are always taken into account. Nevertheless, he noted that this does not mean that the actual pathology seen at the physical examination on March 11, 2020 (bilateral knee osteoarthritis) was the cause of the Veteran’s knee pain at the time of his active service. He noted that it was his experience as a physician with Board certification in physical medicine and rehabilitation specialty and 20 years of experience providing medical care to the Veteran’s population, that 85 to 90 percent of musculoskeletal injuries that occur at basic training are self-limited and unrelated to degenerative changes of the aging process, and mostly due to soft tissue injuries that are transitory in nature. Following the July 2020 VA opinions, the RO noted that only the condition of bilateral pes varus was discussed and requested a clarifying opinion from the July 2020 VA examiner. Accordingly, the examiner provided the requested opinion in September 2020. The examiner stated, The [undersigned] was [assigned] a bilateral foot [examination] of this Veteran which he did and reported on [March 11, 2020][.] The only conditions reported at the Foot DBQ are precisely the ones that belong to the foot DBQ anatomical area and condition in this case congenital bilateral pes varus. The tarsal coalition feet [are] part and parcel of the diagnosis of congenital pes varus as explained at the [July 6, 2020] medical opinion. The other diagnosis mentioned “bilateral knee disabilities diagnosed during the pendency of this claim, to include bilateral congenital pes varus, tarsal coalition feet, bilateral peripheral venous insufficiency, and right lower leg ischemia grade I incision status post arterial bypass graft were seen and evaluated at their respective anatomical areas and reported at the respective DBQs by Tanya S. Silva-Rivera, MD and Luis E. Gonzalez-Martinez, MD[.] Those [conditions] were not seen by the [undersigned] since they [do not] belong to the bilateral foot anatomical areas[;] nevertheless in spite of that fact, extensive medical opinions were already given by this examiner on [July 6, 2020] concerning the other non-foot related conditions described above using other examiner’s evaluations, Tanya S. Silva-Rivera, MD and Luis E. Gonzalez-Martinez, MD, seen [in] the Veteran’s VBMS records. Please refer to the [July 6, 2020] medical opinions which have been already given as requested, or feel free to ask for details and clarifications to the other examiners (Tanya S. Silva-Rivera, MD and Luis E Gonzalez-Martinez, MD) who did the respective physical evaluations concerning the vascular and knee conditions, since those conditions [do not] belong to the foot anatomical area and hence would not be documented at a foot [examination]. Upon review, the Board finds the claim of service connection for a bilateral foot disability, to include bilateral pes varus and tarsal coalition feet, is denied. Probative medical evidence indicates the Veteran’s bilateral foot diagnoses are preexisting defects and there is no probative medical evidence that indicates the Veteran demonstrated a superimposed injury or disease during service indicative of aggravation of his preexisting bilateral pes varus with tarsal coalition feet defect. Additionally, the claim for service connection for a bilateral knee disability is denied. The July 2020 VA examiner opined it was not at least as likely as not that the Veteran’s bilateral knee osteoarthritis had its onset in service or is otherwise etiologically related to the Veteran’s period of active service. The Board finds the July 2020 VA opinion the most probative evidence of record. The VA examiner adequately explained the reasons for his conclusion that the Veteran’s bilateral knee osteoarthritis is related to the normal atraumatic changes of aging process based on review of the record with consideration of the Veteran’s subjective complaints as directed by the June 2020 Board remand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295; Stegall v. West, 11 Vet. App. 268 (1998). There is no opinion to contrary. Lastly, concerning secondary service connection, as the Veteran’s bilateral foot disabilities, to include bilateral pes varus with tarsal coalition feet, are not service connected, his bilateral knee disability cannot be secondary to those disabilities. See 38 C.F.R. § 3.310. Likewise, as the Veteran’s bilateral knee disability is not service connected, his bilateral foot disabilities, to include bilateral pes varus with tarsal coalition feet, cannot be secondary to that disability. Id. The Veteran is competent to report observable symptomatology of his conditions and to relate a contemporaneous medical diagnosis; however, although the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current disabilities. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such disabilities require specialized training for determinations as to diagnosis and causation and are therefore, not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and their relationship to his service. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.