Citation Nr: 21063877 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-43 702 DATE: October 18, 2021 ORDER Service connection for disability resulting from a superimposed disease or injury to a congenital right foot deformity is denied. Service connection for right knee disability, to include as secondary to a superimposed disease or injury to a congenital right foot deformity, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's congenital right foot deformity suffered a superimposed disease or injury during active service, or that a current foot disability is otherwise related to active service. 2. The preponderance of the evidence is against a finding that a right knee disability is the result of active service, to include as secondary to a superimposed disease or injury to a congenital right foot deformity. CONCLUSIONS OF LAW 1. The criteria for service connection for disability resulting from a superimposed disease or injury to a congenital right foot deformity have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for right knee disability, to include as secondary to a superimposed disease or injury to a congenital right foot deformity have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1969 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) from a December 1998 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a disability resulting from a right foot deformity. He raised both claims again in May 2011, which the RO denied in May 2012. After the Veteran filed a Notice of Disagreement in February 2013, the RO issued a deferred rating decision in August 2014 in order to supplement the record with a copy of the Veteran's enlistment examination, but then continued to deny service connection for both claims. Reviewing the RO's decision in September 2018, the Board determined that the evidence added to the record constituted relevant official service records that had existed and had not been associated at with the claims file at the time the 1998 RO's decision had been rendered. The Board reviewed the decision de novo but denied service connection. The United States Court of Appeals for Veteran's Claims (Court) granted the parties' Joint Motion for Remand (JMR) in January 2020. The Court vacated the Board's decision and ordered the VA to assist the Veteran in supplementing the record and providing him necessary medical examinations. The Board remanded the claim in August 2020 so that the record could be supplemented and the appropriate medical examinations conducted. Substantial compliance with the remand request having been achieved, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (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). Service Connection The Veteran contends that his congenitally deformed right foot suffered superimposed disease or injury during his active service, and that his right knee disability is secondary to the superimposed disease or injury to his congenitally deformed right foot. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Under VA's regulatory framework, congenital or developmental diseases are eligible for service connection, but congenital or developmental defects are not. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; VAOGCPREC 82-90. Congenital diseases may be service connected if manifestations of the disease in service constitute aggravation of the condition. VAOGCPREC 82-90. Congenital defects cannot be service connected; however, service connection may be warranted if a superimposed disease or injury occurs in service. Id. Defects are defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." VAOPGCPREC 82-90. A disease, on the other hand, is defined broadly as "any deviation from or interruption of the normal structure or function of any part, organ, or system of the body" and "a condition considered capable of improving or deteriorating." Id. "Any worsening, any change at all might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) (citing VAOGCPREC 82-90). An examiner's determination of whether a condition is a congenital disease or defect "must be supported by 'guidance from medical authorities regarding the proper classification of [the] medical condition at issue.'" Id. at 395 (quoting VAOGCPREC 82-90). The U.S. Court of Appeals for the Federal Circuit has provided a concise summary of the difference between a defect and disease for VA disability benefits determinations, stating that an essentially valid contrast between a disease and a defect is that a disease is capable of improving or deteriorating and a defect is not. O'Bryan v. McDonald, 771 F.3d 1376, 1379 (Fed. Cir. 2014). Alternatively, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512. In deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular 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 at 1376-77. The Veteran's service treatment records (STRs) indicate that the congenital deformity to his right foot was noted repeatedly in his induction examination as either a "congenital deformity of the right foot" or a "minor deformity of the right foot." Elsewhere in his STRs the deformity is referred to variously as "equinovarus deformity of the right foot," "talipes equinovarus deformity of the right foot," or more colloquially as simply a "clubfoot." The Veteran was accepted into the service in late May 1969. He finished basic training in late July, during which he earned a Marksman's Badge, without formal complaint, but later reported to Army medical providers that he had experienced pain on occasion in his right foot. He began Advanced Individual Training (AIT) in August. After a week, he began to complain of pain in his right foot. An examination revealed that he had a talipes equinovarus deformity of the right foot, with plantar flexion at 90 degrees and 10 degrees, ankle flexion at 90 and 10 degrees, and calluses at the four to five metatarsal level due to his placing most of his weight on the outside of his foot when he walked. He reported to medical providers that he had worn corrective shoes as a child and had to go to the doctor every four months due to pain and swelling in his right ankle. He was given protective footwear. He continued to complain of foot pain for several more weeks, and in early September was placed on special duty status that prohibited "crawling, stooping, running, jumping, or prolonged standing or marching" due to his "congenital deformity of the foot." An examination of his foot in November as part of a medical review of his case revealed a talipes equinovarus deformity of the right foot causing pain whenever he was required to be on his feet for a prolonged period of time. The examiner recommended that the Veteran be discharged from the service on medical grounds. The examiner noted that his seven months of service was not considered to have aggravated his condition. A medical board approved the doctor's recommendation and the Veteran was discharged in December 1969. Almost 30 years later, in November 1998, he sought private medical attention for pain in his foot. The doctor took x-rays, noted that he had a deformed right foot, and recommended he see a specialist. In May 2010, the Veteran sought help from a podiatry clinic for problems with his toenails and feet. He reported that he felt pain in his feet if he is was on them all day. An examination showed that his foot deformity was causing calluses and pain on the outside of his foot. The Veteran, suffering from nonservice-connected diabetes and gout as well, sought relief for pain and calluses on several more occasions in 2010 and 2011. In a June 2021 VA examination, the Veteran told the examiner that his club foot had not changed in appearance over the years since his separation. He added that he suffered daily soreness in his foot with weight bearing and this had not changed much over the years, either. His condition had never gotten better or worse, he reported, except when he used orthopedic shoes for symptom relief. The VA examiner, after meticulously reviewing the Veteran's records and claims file and conducting an in-person exam, concluded that the Veteran's right clubfoot "is a congenital DEFECT/DEFORMITY" and "is NOT a congenital disease" (emphasis in original). He noted that a clubfoot, "a common foot abnormality," constitutes a "permanent condition that is not progressive nor does it manifest as a disease." He further found that there was no additional disability to the club foot due to an in-service disease or injury superimposed on the congenital defect. The Veteran, he pointed out, did not suffer any specific direct trauma or injury to his right foot during his service as his placement on restricted duty was designed to ensure and there is no record he suffered a chronic disease or condition during his service or as a result of his service. The Veteran's gout and diabetes mellitus were not due to his service and were not related to his clubfoot. The Veteran himself had admitted that the condition of his right foot has not changed since his service, the examiner pointed out. The Veteran also told the examiner that he had daily "nagging" pain in his knee and that sometimes it swelled. He denied any instability, locking, clicking, or other symptoms. He also denied suffering any past or recent injury or trauma to the knee, and admitted he never sought treatment from any provider for knee issues or complaints. He conceded that he had never received an objective diagnosis for any knee complaint. During the subsequent examination, the VA examiner found the Veteran's range of motion (ROM) to be normal in both knees: flexion to 140 degrees, with no pain. He detected no crepitus, ankylosis, subluxation, ligament tear, instability, nor any difficulty over repetition. The Veteran reported no flare-ups, and the examiner uncovered no muscle atrophy and no meniscus damage. He did not use any assistive device; in fact, he walked into the examination and stood during parts of it without indicating any knee pain. X-rays of the right knee showed no abnormalities except for advanced degenerative narrowing involving the lateral compartment and patellofemoral joint space. The examiner noted that the Veteran's STRs did not indicate any knee injuries, traumas, chronic conditions, or even complaints while the Veteran was in service. He further observed that there was no objective evidence in the record that the Veteran had suffered, or was currently suffering, from any injury, trauma, or chronic condition since he had been discharged. Since there was no knee disability, and no record that there ever had been, there could be no service connection for a knee disability, the examiner reasoned. He further concluded that since there was no right knee disability, there could be no nexus between the clubfoot and the knee; similarly, since the clubfoot was not service connected, there could be no secondary service connection. Finally, rounding out all possible contentions, he observed that since the Veteran had never suffered a knee disability, his knee condition could not have aggravated or superimposed itself on the clubfoot. Service connection for disability resulting from a superimposed disease or injury to a congenital right foot deformity is denied. Service connection for right knee disability, to include as secondary to disability resulting from a superimposed disease or injury to a congenital right foot deformity, is denied. The Board finds that service connection for disability resulting from a superimposed disease or injury to a congenital right foot deformity and for right knee disability, to include as secondary to disability resulting from a superimposed disease or injury to a congenital right foot deformity, are not warranted. The Veteran's talipes equinovarus deformity, commonly known as a clubfoot, has been unequivocally opined as a "congenital defect" in his service treatment records and in post-service medical records, to include a June 2021 VA examination. Further, the June 2021 VA examiner opined that the Veteran's condition had not gotten better or worse, except when the Veteran used orthopedic shoes for symptom relief and, therefore, there was no indication of any superimposed disease or injury. Again, the defect was noted numerous times throughout his induction exam. The Veteran did not seek medical aid after being placed on limited duty and was medically discharged at little more than three months after first seeking medical help, with a notation that his clubfoot had not been aggravated during his service. The record does not reflect that he suffered any injury, trauma, or disease to his right foot while in service; his separation examination does not reflect any; and he did not seek medical attention for his feet again until nearly thirty years later. There is no evidence, then, that a disease or injury was superimposed upon the defect while the Veteran was on active duty. The Veteran claims his right knee condition is "secondary" to his right foot deformity. As the Board finds no basis to award service connection for the congenital right foot deformity, the secondary claim must fail as a matter of law. Further, service connection for the right knee condition on a direct basis is also not warranted. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses related to the right knee. His separation examination does not reflect any problems or complaints. Indeed, there is no objective evidence that the Veteran presently suffers or ever has suffered a disease or defect to his right knee after service. Although pain itself can be a disability for VA purposes, such symptomology must amount to a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The June 2021 VA examiner noted the Veteran's subjective complaints of pain but determined there was no functional impact from such symptomology. Without any indication of right knee symptoms, complaints, treatment, or diagnosis in service, the Board finds that there is no direct nexus to service. The VA clinician sets forth the results his of comprehensive review of the claims file, detailed in-person examination, and the results of in-person examination of the Veteran. He has provided a clear rationale for his opinions. Hence, the Board finds his opinions highly probative and attaches significant weight to them. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran himself maintains that the present pain in his right foot and right knee are a result, either directly or as a secondary cause, to injuries in service. As a lay person, however, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether a clubfoot is a disease or deformity and whether knee pain may be caused by an injury or overlays a deformity are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Quirin, 22 Vet. App. at 395; Davidson v. Shinseki, 581 F.3d at 1316. Thus, the Veteran's opinion regarding the etiology of his conditions is not competent medical evidence. (Continued on the next page) The Board finds the contemporaneous medical evidence and VA medical opinion to be significantly more probative than the lay assertions of record. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. Accordingly, service connection for a disability resulting from a superimposed disease or injury to a congenital right foot deformity, and for right knee disability, to include as secondary to disability resulting from a superimposed disease or injury to a congenital right foot deformity, are denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.