Citation Nr: 21063678 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 10-46 511 DATE: October 15, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a right foot disability is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran's right foot disability occurred in, or is the result of, his period of active duty service. 2. The evidence of record is against finding that the Veteran's right foot disability occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to 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(a)(b), 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran contends that he was given during service boots that were too small, which have resulted in his numerous foot disabilities. See Oct. 29, 2010, VA Form 9. In an October 2014 Decision, the Board found that new and material evidence had been received to reopen a previous September 2001 final denial by the RO and remanded these claims for additional development. The agency of original jurisdiction (AOJ) was to request records from the VA medical center (VAMC) in Ft. Sill, Oklahoma, beginning 1976, and VAMC records from the Knoxville, Tennessee, location between 1990 and 1991. After the record development, the AOJ was to schedule the Veteran for an examination of his feet and to obtain an etiological opinion as to his various foot conditions. The examinations and opinions were obtained in March 2016. A February 2017 Board Decision again remanded these claims because there were outstanding VAMC records that needed to be associated with the claims file. In a February 2018 Decision, the Board found that remand once more was required because the March 2016 VA opinions did not address the Veteran's specifically articulated theory that his foot conditions were caused by the fact that he allegedly was issued boots that were too small for his feet. New opinions were obtained in July 2019. For a fourth time, the Board remanded in December 2019 this appeal because the July 2019 opinion failed to address all the Veteran's diagnosed foot conditions. The new opinions were obtained in February 2020. The Board unfortunately was notified in June 2020 of the Veteran's death, and it subsequently issued a July 2020 dismissal of this appeal based on that fact. In December 2020, however, the Veteran's wifethe Appellant in this claimwas notified that she was accepted as a proper substitute. Thus, she now stands in the shoes of the Veteran for purposes of adjudicating this appeal. Based on the above discussion, as well as the discussion that follows, the Board finds that substantial compliance has been afforded with all prior remand directives, permitting readjudication of the appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. An October 1972 service treatment record (STR) notes that the Veteran had right foot hallux painresolving. He was stepped on seven days prior and experienced a partial nail avulsion and subungual hematoma. There are no other entries regarding any foot painright or left. Post-service VAMC records show that the Veteran began seeking in October 1997 medical attention for bilateral foot pain. It was during this time that he first was noted to have painful, bilateral bunions. The Veteran underwent surgery on his right foot in 2006 and surgery on the left in 2007. An entry from April 2008 shows that the Veteran suffered from a history of right severe painful hallux valgus deformity with bunionette and left hallus deformity. On his October 2010 VA Form 9, the Veteran indicated his request for a Board hearing, but that request later was withdrawn. See July 11, 2014, Motion to Withdraw Request for Hearing. In August 2015, VA obtained the previously mentioned treatment records from the VAMC in Ft. Sill, Oklahoma, since 1976, but they do not contain any treatment for a bilateral foot condition. A March 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with bilateral hallus valgus since the 1990s, bilateral status post bunionectomy since 2004, a left calcaneal spur since 2016, and an old fracture of the fifth metatarsal, as well as calcaneal spur of the right foot since 2016. Here, the Veteran specifically endorsed wearing boots sized ten, despite his need for a larger size both in length and width. The examiner noted that none of the listed conditions would be caused by the Veteran's in-service right foot nail aversion, which resolved without residuals. Thus, it was less likely than not that any of the Veteran's foot conditions were related to that in-service event. In March 2016, VA was informed by the Mountain Home VAMC in Tennessee that it has "NO RECORD of the [V]eteran ever being at that facility." The following day, VA sent to the Veteran a letter explaining as such. In April 2016, the Veteran himself submitted the VAMC records from the Knoxville location. Thus, on these issues, the Board finds VA's duty to assist the Veteran (and now the Appellant) has been satisfied. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c)(3), (e). In a May 2016 statement, the Veteran reiterated that he was given shoes too small for his feet. He further stresses that, for his seven weeks of boot camp and two weeks of A.T. school, his feet were in pain. The Veteran conceded that he did not seek attention for his feet because "it did more harm than good to complain." In April 2017 VA was notified that a request for records from the Newport, Rhode Island, Naval Hospital yielded a negative response; the Veteran was notified as such via a May 2017 letter. Thus, the duty to assist with those records also has been satisfied. See Sullivan, 815 F.3d at 793; 38 C.F.R. § 3.159(c)(3), (e). A July 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with bilateral hallus valgus since the 1990s, bilateral calcaneal spurs since 2016, bilateral degenerative arthritis since 2016, and status post bunionectomies (left 2006 and right 2007). In opining that the Veteran's right foot disabilities are not related to service, the examiner stated the following: STR'S [SIC] SHOW IN 1972 STEPPED ON RIGHT HALLUX WITH PARTIAL NAIL AVULSION. TREATED WITH TOPICAL ANTIBIOTICS. NO FURTHER RECORDS FOUND OF ANY FOOT PROBLEMS. QTC 3/16 OKC OPINION HALLUX VALGUS NOT DUE TO SERVICE AND INJURY WITH AVULSED NAIL RIGHT IN 1972. VETERAN HAD ONE INJURY OF AVULSED NAIL RIGHT FOOT EARLY IN SERVICE. NO FURTHER RECORDS FOR FOOT PROBLEMS FOUND IN STR'S OR FOR YEARS AFTERWARDS. HALLUX VALGUS IN THIS VETERAN AS LIKELY AS NOT DUE TO AN INHERITED GENETIC DEFECT WHICH CAN BE AND IS KNOWN TO BE A CAUSE OF HALLUX VALGUS. IF ANY IMPROPER FOOTWEAR WAS USED IN SERVICE IT WOULD REQUIRE MANY MORE THAN 2 YEARS TO BE CONSIDERED A FACTOR IN DEVELOPMENT OF HALLUX VALGUS. IT IS THEREFORE THIS EXAMINER'S OPINION THAT THE RIGHT HALLUX VALGUS LESS LIKELY AS NOT RELATED TO SERVICE. The examiner provided the same rationale for the left foot. In February 2020, the addendum opinions were obtained in response to the Board's latest remand. Responding to the Veteran's bilateral calcaneal spurs, the examiner stated the following: Veteran's bilateral calcaneal spurs are less likely than not related to or caused . . . by improper footwear during service. The medical records does [sic] not show any indication Veteran's bilateral calcaneal spurs are a result of improper use of footwear during service. Veteran was in service for 3 years, 19721975 and the onset of the bilateral calcaneal spurs was more than 30 years after the Veteran left service. Bilateral calcaneal spurs are due to wear and tear, and is a type of degenerative condition. Given the onset, the timing and the history of Veteran's employment after service being on his feet a lot and the underlying obesity, the calcaneal spurs are likely a result of the mentioned factors rather than from the use of footwear for 3 years during service. Regarding his degenerative condition: Veteran's bilateral degenerative arthritis of the feet is less likely than not incurred in or caused by improper footwear during service. Improper use of footwear is not known to cause degenerative arthritis of the feet. Veteran's degenerative arthritis of feet is more likely due to age related degenerative changes that occurs over time, Veteran's obesity, and activities after service. Lastly, the veteran's bilateral bunionectomies: Veteran's s/p bilateral bunionectomies are less likely than not caused by improper footwear during service. Although narrow fitting shoes have been hypothesized as a cause of bunions, the service treatment records does not show the onset of the bunions was at the time of use of footwear during service. The onset of Veteran's bunions was years after service, which does not indicate they were caused by possible improper footwear use during service. The medical records does [sic] not show any link between the s/p bilateral bunionectomies and improper use of footwear during service. In her April 2020 Supplemental Argument, Counsel argues that there is no evidence to refute the Veteran's contentions that he experienced pain in his feet during service until the time of his death, even though the conditions may not have manifested until many years after service. Thus, Counsel believes that the weight of the evidence is at least in relative equipoise. The Board acknowledges that the Veteran had a host of bilateral foot conditions, so the first element of service connection is established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Veteran had in his feet arthritis and calcaneal spurs, both of which are degenerative in nature and qualify as a chronic condition for purposes of presumptive service connection. See 38 C.F.R. § 3.309(a). Nevertheless, because these conditions were not diagnosed within a year after separation form service, the presumption is inapplicable in this case. See 38 C.F.R. § 3.307(a)(3). In her Supplemental Argument, Counsel appears to advance the theory that, although the Veteran's conditions were not diagnosed until many years after service, he nevertheless experienced symptoms thereof since service up and until the date of his death. Such an argument will be construed as one for presumptive service connection based on continuity of symptomatology. The Board, however, does not find credible the Veteran's assertions that he experienced foot pain since service up until his death, as will be explained below. The Veteran conceded that he did not seek medical attention for his feet during service because it would do "more harm than good to complain." May 24, 2016, Written Statement. Even if the Board were to grant the Veteran the benefit of that doubt, it does not answer why the Veteran waited until 1997roughly twenty-two years after separationto seek medical treatment for his bilateral foot pain. VAMC records from 1997 are the earliest of record documenting that the Veteran sought treatment for his feet. Even if the Veteran believed, for whatever reason, that requesting intra-service medical attention would be detrimental, he offers no explanation for the more-than-twenty-two-year gap between alleged onset and the beginning of treatment. This lack of explanation is a factor that the Board may consider. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Thus, the evidence points against finding in favor for the presumption of service connection based on continuity of symptomatology. The record contains no explanation for why the Veteran waited to seek medical attention for more than two decades after service, and there are no other lay statements from the Appellant or other sources that document any symptoms of the Veteran's alleged bilateral foot pain since service. Thus, the Board finds that presumptive service connection based on continuity of symptomatology is not appropriate. See 38 C.F.R. § 3.303(b). Turning back to direct service connection, the Board acknowledges that the Veteran had an in-service injury to his right foot. It also will concede that he was issued combat boots that were too small for his feet. Thus, the second element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Even with those two in-service events, all the competent and credible medical opinions of record weigh against establishing the third element. When viewed together, the medical opinions show that the Veteran's bilateral foot conditions were caused neither by his in-service right foot injury nor by wearing for about two years shoes that were too small. The only medical opinion that arguably assists the Appellant is one of the February 2020 opinions noting that ill-fitting shoes has been "hypothesized" to cause bunions. Hypothesized, however, is not the legal equivalent of as least as likely as not, and that opinion also states that there is no STR documentation of bunions and that their development so long after service indicates that the two are not related. The Veteran's other conditions have been attributed to age, obesity, and post-service activities. While the Veteran, prior to his death, and the Appellant currently believe that the Veteran's foot conditions were caused by service, neither of them are competent to offer that complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Thus, without any contradiction by any competent and credible evidence of record, the Board affords all the VA opinions considerable probative value on appeal. It, therefore, finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Appellant's claim for entitlement to service connection for the Veteran's bilateral foot disability, her appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.