Citation Nr: 21003897 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-06 969 DATE: January 25, 2021 ORDER Service connection for a neck disability is denied. Service connection for a left foot disability, to include plantar fasciitis, is denied. Service connection for a right foot disability, to include plantar fasciitis, is denied. FINDINGS OF FACT 1. A chronic neck disability did not originate in service or for years thereafter; and, the weight of the evidence is against a finding that a neck disability is etiologically related to service. 2. The weight of the evidence is against a finding that the Veteran has been diagnosed as having a left foot disability, or disorder of the left foot resulting in functional impairment, at any time during the appeal period. 3. A chronic right foot disability did not originate in service or for years thereafter: and, the weight of the evidence is against a finding that a neck disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy (Navy) from June 1980 to June 1984 and from April 1993 to September 1995. The Veteran had additional service in the United States Naval Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran participated in a July 2020 hearing before the undersigned, and a transcript of this hearing has been associated with the record. The Board notes that the AOJ developed a claim for service connection for plantar fasciitis as a distinct claim from the Veteran’s claims for service connection for bilateral feet disabilities. For clarity, the Board has recharacterized this issue as included with the Veteran’s claims for service connection for a bilateral foot disability. The Board’s recharacterization of this claim does not prejudice the Veteran. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As the above three-element test shows, a valid claim for service connection requires proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A “disability” is an impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Pain alone, even absent a current diagnosis, can itself result in functional impairment that may qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Service connection for certain chronic diseases may be established based on a continuity of symptoms since discharge.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Arthritis is a chronic disease for which service connection may be established based on a continuity of symptoms or presumption. Service Connection for a Neck Disability In June 1990, the Veteran complained of a 2 week history of neck pain. The Veteran was assessed with a muscular strain and was advised to return for follow-up treatment. In his August 1995 self-reported medical history conducted at his separation from service, the Veteran denied ever having experienced symptoms such as swollen or painful joints, arthritis, rheumatism, bursitis, deformities, recurrent back pain, or neuritis. Consistent with his self-report, the separation examination noted that the Veteran’s head, neck, and spine were all normal. Following the Veteran’s separation from service, in July 1997, the Veteran suffered a neck injury while working above his head. An October 1997 clinician noted the Veteran had a “benign past medical history” before this incident. The Veteran was treated for a cervical disc herniation, and he underwent a surgical fusion of the cervical spine in February 1998. In February 2015, the Veteran stated to a VA clinician that he had experienced a recurrence of neck pain “only recently”. Later that month, the Veteran stated that his neck pain had been “good” for five years following his 1998 neck surgery. The Veteran underwent a VA examination in July 2015, at which time the examiner diagnosed the Veteran with intervertebral disc disorder with post-surgical residuals. The examiner opined that it was less likely than not that the Veteran’s neck disability related to his active duty service. As a rationale for this opinion, the examiner noted that the Veteran was treated conservatively following his June 1990 complaints of pain, and he did not seek follow-up treatment. The examiner noted that the Veteran’s service treatment records, including a 1993 screening evaluation and an August 1995 separation examination, did not show a neck disability. The examiner noted that the Veteran’s in-service complaint of a muscle strain occurred five years before his separation from service. The examiner commented that an injury of the type that the Veteran suffered would be expected to resolve without an associated chronic condition. Consistent with this observation, the examiner stated that the record showed a long interval without neck symptoms, which suggested that the Veteran’s in-service episode of neck pain was acute and resolved. During his July 2020 hearing before the undersigned, the Veteran described experiencing occasional “sharp pain” in his neck between 1994 and his 1997 workplace injury, but he ignored this pain. Turning to an analysis of these facts, the weight of the evidence is against a finding that the Veteran experienced a chronic neck disability as a result of his active duty service.  In making this determination, the Board places great probative weight on the opinion of the July 2015 examiner that the Veteran’s neck disability was not likely related to his service because such opinion was offered by a medical professional, and the opinion considered and discussed the pertinent evidence of record, to include the reported lay evidence, service treatment records, and post-service medical records. To the extent that the Veteran asserts that his neck disability is related to his active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Indeed, VA provided the Veteran with an examination based on the competency of those observations.   Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable symptoms such as pain.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The issue of causation of a neck disability, however, is a medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s neck disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran’s orthopedic system, the internal functioning of which is not readily perceivable by the use of a person’s senses.   The Board finds additionally that the weight of the evidence is against a finding of a continuity of symptomatology associated with the Veteran’s neck disability. The Veteran’s neck was found to be normal at the time of his separation from service, and the Veteran denied ever having experienced any symptoms affecting his neck at the time of his service separation.  Further, following the Veteran’s separation from service, the Veteran first complained of neck pain in 1997 following a workplace injury.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  When seeking treatment for these symptoms, the Veteran consistently attributed his neck pain only to the 1997 injury, rather than to any incident of his military service. Similarly, when seeking treatment for neck pain in 2015, the Veteran stated that “only recently” had he begun to experience neck pain following his neck surgery.   While the Board has considered the Veteran’s current assertions that he has experienced symptoms of neck pain continuously since his separation from service, the Board places little weight in these contentions, given his previous statements to the contrary to clinicians. The Board thus finds that the weight of the evidence does not support a finding that the Veteran experienced symptoms of a neck disability continuously since service.  Presumptive service connection is similarly unwarranted because a neck disability was not shown within one year following the Veteran’s separation from service.   Accordingly, the criteria for service connection for a neck disability have not been met, and the Veteran’s claim is denied.   Service Connection for a Left Foot Disability The Veteran has not been provided with an examination addressing his left foot disability. VA does not have to provide a veteran with a medical examination unless there is an indication that a claimed disability may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As is discussed in greater detail below, the weight of the evidence is against a finding that the Veteran has a current left foot disability. Without a current disability, VA’s duty to provide the veteran with an examination of his disability has not been triggered. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). While the Veteran has often sought treatment for symptoms affecting his right foot, the Veteran has not sought such treatment for symptoms affecting his left foot. The Veteran himself has on only a few occasions referred to the presence of a left foot disability. For example, in his January 2016 notice of disagreement, the Veteran stated that he had bone spurs of the left foot. While the Board acknowledges the Veteran’s statement, the medical evidence, including a July 2015 examination report, indicates that the Veteran has bone spurs of the right foot, rather than the left foot. The weight of the medical evidence is against a finding that the Veteran has a left foot disability. To the extent that the Veteran indeed believes that he has such a disability, the Veteran is competent to testify as to readily observable symptoms. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent, however, to report that any symptoms that he experiences rise to the level of a “disability” for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a left foot disability or even functional loss of the left foot, particularly when he has denied experiencing such symptoms to clinicians and not otherwise sought treatment for such symptoms. The Board, therefore, finds that the weight of the evidence does not establish the presence of a left foot disability, and the claim for service connection is denied. Service Connection for a Right Foot Disability In June 1995, the Veteran sought treatment for pain in his right foot after “stepp[ing] on it wrong” while descending a ladder. He was assessed with a soft tissue injury of the right foot. In his August 1995 self-reported medical history conducted at his separation from service, the Veteran denied ever having experienced symptoms such as swollen or painful joints, arthritis, rheumatism, bursitis, deformities, foot trouble, or neuritis. Consistent with his self-report, the separation examination noted that the Veteran’s feet were normal. Following separation from service, the Veteran sought treatment for an ingrown toenail of the right foot in June 2013, with the ingrown toenail ultimately surgically corrected in September 2013. In April 2014, a clinician noted that the Veteran had a “limp from [a] right heel injury while in the Navy”. In September 2014, a clinician noted that the Veteran had a history of gout following his complaint of a 3-day history of pain in his right great toe. The Veteran filed his claim for service connection in March 2015. The Veteran underwent a VA examination in July 2015, at which time the Veteran stated that he suffered an injury to his right foot in 1995, which resulted in persistent, chronic pain in his right heel. The examiner opined that it was less likely than not that the Veteran’s right foot disability related to his active duty service. As a rationale for this opinion, the examiner noted that the Veteran was treated conservatively as the result of his 1995 injury to the right foot, with the Veteran not seeking to pursue follow-up treatment offered by clinicians. The examiner noted that the Veteran’s August 1995 separation examination did not show a foot disability. The examiner commented that an injury of the type that the Veteran suffered would be expected to resolve without an associated chronic condition. In a February 2018 podiatry consultation, the Veteran stated that he experienced an in-service foot injury after falling down a flight of stairs. The Veteran stated that he “recovered from that point”, but he developed occasional pain in his right foot approximately 6 months after the injury. The clinician noted that the Veteran had a history of gout but was “pretty adamant” that his right foot pain did not relate to gout. An x-ray of the Veteran’s right foot showed mild degenerative changes of the first metatarsophalangeal joint and a small plantar-calcaneal spur. In April 2019, a clinician attributed the Veteran’s right foot pain to his gout. During his July 2020 hearing before the undersigned, the Veteran stated that he first sought treatment for a right foot disability approximately one year after his separation from service. The Veteran additionally described experiencing pain in his right foot since his separation from service. Turning to an analysis of these facts, the weight of the evidence is against a finding that the Veteran experienced a chronic right foot disability as a result of his active duty service.  In making this determination, the Board places great probative weight on the opinion of the July 2015 examiner that the Veteran’s right foot disability was not likely related to his service because such opinion was offered by a medical professional, and the opinion considered and discussed the pertinent evidence of record, to include the reported lay evidence, service treatment records, and post-service medical records. In making this determination, the Board acknowledges that the record contains suggestions from clinicians that the Veteran’s right foot disability relates to his service. For example, in April 2014, a clinician stated that the Veteran had a “limp from [a] right heel injury while in the Navy”. The Board places relatively little probative value in statements such as these because they are based on the Veteran’s self-report of his symptoms rather than on the clinician’s independent review of the medical record. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board emphasizes that a review of record is not required. However, as explained, the clinician’s failure to address the complete clinical history, which includes the lack of complaints of disability after the initial injury and at discharge, weakens the overall value of the opinion. To the extent that the Veteran asserts that his right foot disability is related to his active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Indeed, VA provided the Veteran with an examination based on the competency of those observations.   Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable symptoms such as pain.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The issue of causation of a right foot disability, however, is a medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s right foot disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran’s orthopedic system, the internal functioning of which is not readily perceivable by the use of a person’s senses.   The Board finds additionally that the weight of the evidence is against a finding of a continuity of symptomatology associated with the Veteran’s right foot disability. The Veteran’s feet were found to be normal at the time of his separation from service, and the Veteran denied ever having experienced any symptoms affecting his right foot at the time of his service separation.  Furthermore, following the Veteran’s separation from service, the Veteran first complained of right foot pain in 2013, approximately 18 years following his separation from service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The length of time between the Veteran’s separation from service and his first complaints of right foot pain weighs against a finding that the Veteran experienced symptoms of right foot pain continuously since his separation from service. While the Board has considered the Veteran’s current assertions that he has experienced symptoms of right foot pain continuously since his separation from service, the Board places little weight in these contentions, given his previous statements to the contrary to clinicians. The Board thus finds that the weight of the evidence does not support a finding that the Veteran experienced symptoms of a right foot disability continuously since service.  Presumptive service connection is similarly unwarranted because a right foot disability was not shown within one year following the Veteran’s separation from service.   Accordingly, the criteria for service connection for a right foot disability have not been met, and the Veteran’s claim is denied.   MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.