Citation Nr: 21005201 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-44 509 DATE: January 29, 2021 ORDER Entitlement to service connection for a right foot disability is denied. FINDING OF FACT The Veteran’s right foot disability did not manifest during and is not otherwise related to service, to include his in-service cold injury. CONCLUSION OF LAW The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1980 to July 1984, with additional periods of Army Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied entitlement to service connection for a right foot disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By Order dated in May 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the denial of entitlement to service connection for a right foot disability. The April 2019 JMPR stated that the Board relied on an inadequate VA examination report. Specifically, the June 2015 examiner’s report concluded the Veteran’s right foot disability was less likely than not incurred in or caused by the claimed in-service injury, stating that the Veteran had a history of lumbar spine intervertebral disk syndrome (IVDS) that probably caused the numbness in his right foot. However, the examiner did not cite to “any medical records describing or reflecting lumbar spine IVDS,” rendering the opinion inadequate. In October 2020, the Board remanded this matter to obtain an adequate opinion, which was received in October 2020. As such, all development ordered in the October 2020 remand order has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right foot disability is denied. The Veteran contends that his current right foot disability is related to a frostbite injury he sustained while serving in Germany. See VA 21-4138, Statement in Support of Claim, August 2017. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has a current diagnosis of hyperkeratosis of the plantar surface of the right foot, and evidence shows a frostbite incident of the right foot during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hyperkeratosis of the plantar surface of the right foot began during and continued since service or is otherwise related to an in-service injury or disease. Regarding an in-service injury, service personnel records show the Veteran was stationed in Germany from July 1982 to July 1984. Unfortunately, the Veteran’s service treatment records for his period of active service are not available. See VA Correspondence, March 2015. However, some records are available from his period of service with the Army Reserve, including a February 1987 retention examination, which shows the Veteran’s feet were clinically normal. The provider noted the history of frostbite in 1983 but that the Veteran had no complications from the incident. Thus, the Board finds that the Veteran likely had a frostbite injury during service. Regarding a current disability, the June 2015 VA examination and October 2020 VA opinion confirm that the Veteran has had plantar hyperkeratosis, or calluses, on the right foot. Thus, the Veteran has a current disability. Unfortunately, the evidence does not support a finding of service connection based on continuity of symptomatology since service. As noted above, the Veteran did not have any right foot disability at the time of the February 1987 retention examination, which was conducted over two years after separation from active service, and the examiner specifically stated that the Veteran had no complications from the frostbite incident. Further, VA treatment records dated from 1999 to 2015 do not show complaint or diagnosis of a right foot condition. Specifically, in November 1999, the Veteran was assessed with upper respiratory infection versus community acquired pneumonia. He did not report symptoms related to the right foot. His next treatment was in June 2002. At that time, the Veteran attended a physical examination for the purpose of establishing him as a patient. The Veteran did not report any problems with the right foot. At his next appointment in April 2004, the Veteran reported occasional pain shooting down from his mid to low back down to the right lower extremity. He did not report problems with the right foot. The first indication of a right foot disability was not documented until the Veteran submitted the June 2014 claim for service connection. As such, the Board finds that the medical evidence does not support the finding of service connection based on continuity of symptomatology. The Board also finds that the Veteran’s lay statements do not support a finding of service connection based on continuity of symptomatology. In an August 2017 statement, the Veteran reported having a frostbite injury during service while he was stationed in Germany. He indicated that after discharge from service, he continued to have constant pain and numbness, and that during his period of service in the Reserve, he treated his feet on his own until the 1990s when he sought treatment at VA facilities. In addition to his statement, VA treatment records dated subsequent to the filing of his claim show his assertion that his symptoms manifested during and persisted since his cold injury during service. While the Veteran is competent to report having experienced symptoms of right foot pain and numbness during and since service, his statements are not credible. He did not report right foot symptoms during his 1987 retention examination, which was completed over two years after separation from service. The Board finds that had such symptoms been present and reported, they would have been recorded in the examination report, particularly since the Veteran reported a history of a frostbite injury at that time. Moreover, the examination was normal and the clinician expressly found no residuals from the frostbite injury. VA treatment records from 1999 to 2015 also fail to show complaints of right foot symptoms, such as pain and numbness, in clinical settings where they would have likely been recorded if present. At most, the Veteran reported radiating pain from his back down the right extremity, but he did not report any problems with his right foot. Notably, the Veteran reported that he was treated by private provider, Dr. L. VA attempted to obtain records from Dr. L., but his office indicated that no records were found. See VA 21-0820 Report of General Information, April 19, 2018. Based on the available evidence, it was not until after the Veteran filed his claim for service connection that he sought treatment for a right foot disability and asserted continuity of symptoms since service. Consequently, the Board finds that the Veteran’s assertions of continuity of symptomatology are inconsistent with statements made to medical providers in the course of regular treatment prior to the filing of his claim, and as such are not credible. The Board also finds that service connection is not warranted on a direct basis because the evidence does not show a nexus between the current right foot disability and service. The Veteran had VA examinations for feet and cold injuries in June 2015; however, as discussed in the October 2020 Board remand, the opinion report is inadequate for rating purposes and may not be considered. Briefly, the examination reports show diagnoses of plantar hyperkeratosis and sensory neuropathy of the right foot, and document the Veteran’s description of persistent daily plantar right foot pain due to calluses. A January 2018 VA treatment record shows the Veteran presented for sharp pain in the right foot, which he said had been present since a frostbite injury during service. He also described numbness in the right forefoot. The assessment was peripheral neuropathy, possibly related to frost bite, and tinea pedis. The provider did not indicate a nexus to service. In February 2018, the Veteran had electromyography (EMG) testing. The study was normal, without evidence of a right lower extremity neuropathy, plexopathy, or radiculopathy. In October 2020, an addendum opinion was obtained from a VA examiner. The examiner indicated that he reviewed the available records and electronic claims file. He also reviewed the June 2015 VA examination report and stated that the diagnosis of plantar hyperkeratosis was correct but that the second diagnosis of sensory neuropathy was incorrect, as documented on the EMG study. The examiner also addressed the VA treatment record from January 2018 and found that the Veteran’s symptoms were inconsistent with those that would be anticipated from a frostbite injury. He also stated that there were inconsistencies on the sensory exam. The examiner concluded that the cause of the Veteran’s right foot pain is consistent with calluses on the plantar surface and that the condition is not medically known to be caused by an old cold injury. He stated that the service treatment records and records dated soon after discharge from active duty are silent for calluses on the plantar surface of the right foot. He pointed out that the 1987 examination report clearly states that the Veteran did not have residuals from the frostbite incident and that the foot examination was normal. Further, he noted that the records do not show treatment for a right foot condition for many years after separation to account for continuity of symptoms. The examiner stated that if the Veteran had sustained a cold injury to the right foot, then it had resolved prior to discharge from active duty. Therefore, he opined that it is less likely than not that the current right foot disability was incurred in or caused by the claimed in-service injury, event, or illness. Based on the evidence, treatment records show the Veteran was not diagnosed with a right foot disability until June 2015, more than 30 years after his separation from service. Further, the October 2020 VA examiner opined that the Veteran’s right foot disability is not at least as likely as not related to an in-service injury, event, or disease, including the reported frostbite injury. Significantly, he concluded that the Veteran did not have any residuals at the time of the 1987 examination and that calluses are not medically known to be caused by cold injury. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the January 2018 VA treatment record assessing peripheral neuropathy, possibly related to frost bite. To the extent this provides a diagnosis of peripheral neuropathy, the Board finds that it is outweighed by the October 2020 VA medical opinion, given that the opinion was based on objective diagnostic testing which affirmatively showed no neuropathy was present. In addition, to the extent it provides a nexus, the Board finds that it is of limited probative weight as it is framed in speculative terms. The Board has also considered the Veteran’s assertion that his current disability is a residual of his frostbite injury. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the underlying pathology of his disability and medical expertise. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2020 VA opinion. For the reasons stated above, the evidence is against a finding that the Veteran’s current right foot disability either manifested during or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.