Citation Nr: 21064077 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-33 162 DATE: October 19, 2021 ORDER Service connection for a disability of the right foot is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with metatarsalgia, hammertoe, hallux valgus, and plantar fasciitis of the right foot. 2. The Veteran does not have a disability of the right foot, including metatarsalgia, hammertoe, hallux valgus, and plantar fasciitis, linked to disease or injury incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for a disability of the right foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from October 1963 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in January 2020 and January 2021. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Right Foot Disability The Veteran states that he has a right foot disability caused by prolonged marching and a drill sergeant stomping on his foot during active service. See, e.g., March 2019 Hearing Transcript. For the following reasons, the Board finds that service connection is not established. The service treatment records show complaints of left foot pain, but not of right foot symptoms. A January 1964 orthopedic consultation report reflects that the Veteran related that his left foot began to bother him because of constant use of his feet. He had pain under the ball of his toes when walking, and with prolonged standing. He reported sustaining a burn to his foot when he was nine years old, and "now stands [with] only the great toe touching [the] floor." Examination showed a cock-up deformity of the second through fifth toes of the left foot. He could not flex his toes to the ground. Calluses were present under the metatarsal heads which were sore to touch. He had well-healed, corrugated skin from the previous burns and surgery over the dorsum of the feet. He had skin and soft tissue contracture of the dorsum of the left foot with contractures of the long toe extensors and cock-up toe deformities. He had a "predisposing condition on [the right] foot to [the] same problem developing." A February 1964 medical board report reflects that the Veteran presented with pain in his left foot since boot camp. He had a history of sustaining burns to both feet as a child. He was treated at the time with skin grafting to the dorsum of the left foot. He recovered well from that injury, and only had occasional pains in his left foot. During boot camp training with prolonged use of his feet he noted pain in the ball of the left foot which became constant and was aggravated with marching or standing. It was advised that he be medically discharged from service. The March 1964 discharge examination report reflects that the Veteran's feet were clinically evaluated as abnormal, with a corresponding notation that he had contractures of the dorsum of both feet secondary to burns that existed prior to entry. A June 1966 VA examination report reflects that the Veteran related having pain in the left foot at intervals for two years. Physical findings were negative. There were scars from burns of both feet. A May 2010 written statement by an individual who served with the Veteran states that he remembered the Veteran complaining of foot pain during a march and the drill sergeant stomping on his feet. The individual further stated that the Veteran went to sick bay and that "they said" that one of his feet was broken in four places and the other injured. In a December 2011 statement, the Veteran wrote that when he was treated at sick bay during active service, he was told that his right foot had broken toes and his left foot a contusion that make his toes stick up. In this statement and in several others, as well as at the Board hearing, the Veteran averred that his right foot was stomped on by the drill sergeant when he complained of right foot pain. In a May 2016 statement, the Veteran's half-brother wrote that the Veteran did not have a bilateral foot condition prior to enlistment, but that upon discharge from active service there was marked deterioration of his feet. A VA examination to assess scarring of the feet was conducted in April 2013. The report reflects that the Veteran related a history of sustaining third degree burns on the dorsal aspect of the left foot which required skin grafting to the dorsal foot. He also sustained burns on the right foot which did not require a graft. No scarring was observed on the right foot on examination. A VA foot examination was also performed in April 2013. The examination report reflects a finding of a hammertoe of the second toe of the right foot. No other abnormalities were found on examination of the right foot. An x-ray study showed no acute osseous abnormality or significant degenerative disease. The examiner found that the hammertoe deformity was likely due to normal aging and the tight fitting boots the Veteran wore. Another VA foot examination was performed in February 2020. The examiner diagnosed, in relevant part, metatarsalgia of both feet, hammertoes of both feet, and plantar fasciitis of both feet. A VA medical opinion was obtained in June 2021, which is based on review of the claims file and pertinent medical history. The examiner found that the Veteran's right foot conditions are less likely than not related to an in-service injury, illness, or event because there was no evidence of a right foot condition in the service treatment records; they only showed complaints with regard to the left foot. The Board finds that a right foot condition did not manifest in service, and that the Veteran did not sustain an injury to the right foot in service. His statements on that issue lack credibility. In this regard, there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Id. Thus, the Board may not rely on an absence of treatment without explaining "why the appellant would reasonably have been expected to report his symptoms to medical providers." Fountain, 27. Vet. App. at 273. The Board must also consider whether it is qualified to make that determination, or whether independent medical evidence is required. Kahana v. Shinseki, 24 Vet. App. 428, 434-35 (2011) (holding that the Board improperly found that a claimed injury would have been documented at the time, as there was no independent medical evidence to support that determination.) In determining whether a claimant's statements are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In this case, the Board finds that there is sufficient foundation to draw adverse inferences against the credibility of the Veteran's statements from silence in the record. No medical judgment is required to make that determination, and thus it is within the Board's competence. Specifically, the service treatment records in the file appear complete, and show that he was seen several times for left foot complaints, and that both his feet were examined. No findings were made with regard to the right foot, including in the detailed medical board report, except for the fact that it was "predisposed" to develop the same condition that affected the left foot. The word "predisposed" indicates that the right foot had not yet developed that condition. Indeed, neither the service treatment records nor current records show contracture or cock-up deformity of the right foot. The only finding in the service treatment records with regard to the right foot is that there was well-healed corrugated skin from the pre-service burn injury he sustained as a child. The fact that the Veteran states he had broken toes in his right foot, and yet the service treatment records only show complaints and abnormal findings regarding the left foot, underscores the implausibility, and hence the lack of credibility, of his statements. It is implausible he would have sustained broken toes of the right foot, and yet this would not be mentioned once in the context of treatment of his left foot pain, which included examination of both feet, perhaps because he related the history of burn injuries to both feet. The Board thus finds that in this case, had the Veteran had right foot symptoms, let alone broken toes or other abnormalities, such would have been documented in the service treatment records, since these records thoroughly discuss both his left foot and his history of sustaining burns to both feet as a child, and indeed note examination findings regarding the right foot. Moreover, the VA examiner found that the Veteran did not have a right foot condition during service because the service treatment records were negative for right foot complaints or treatment, which is an independent medical basis for finding that such would have ordinarily been recorded. The Board is aware that the March 1964 discharge examination report contains a notation that the Veteran had contractures of the dorsum of both feet secondary to burns that existed prior to entry. However, as discussed above, the service treatment records themselves, and the medical evaluation board report containing detailed findings regarding the Veteran's feet and the pertinent medical history, show that only the left foot had contracture. Current examination of the Veteran's feet during the pendency of this claim likewise has shown only left foot contracture. See April 2013 VA Examination Report. Thus, the notation in the March 1964 discharge examination report was clearly in error with respect to the right foot, and therefore does not alter the Board's conclusion that a right foot condition did not manifest during service. The Veteran's testimony that, when he was being treated during service, he did not disclose that the drill sergeant stomped on his feet, also does not alter the Board's finding that a right foot condition did not manifest in service. He did complain of left foot pain, and examination findings showed contracture of the left foot at the time, but not the right foot. Thus, even if he was unwilling to inform medical personnel that a drill sergeant had stomped on his foot, there would still be no reason for him to only report left foot pain, and not also mention right foot symptoms, had such been present. As discussed above, consistent with the fact that the Veteran only complained of left foot pain, examination findings showed contracture of the left foot and calluses, but no abnormality of the right foot except for the well-healed corrugated skin from the pre-service burn injury residuals. Accordingly, the fact that the service treatment records thoroughly document the Veteran's medical history regarding his feet, and show only complaints and abnormal findings with regard to the left foot (with the exception of the skin, as just discussed), leads the Board to find that the Veteran's statements that he had a right foot injury in serviceand indeed sustained broken toes of the right footare not credible based on silence in the service treatment records with respect to the right foot. Indeed, they are not just silent, but show that the right foot was examined and that no abnormality was found other than well-healed corrugated skin on the dorsal aspect. For the same reasons that the Veteran's statements lack credibility, the Board finds that the statements by the individual who served with him and by his half brother are not credible with regard to his right foot. It may also be that the individual who served with him, and who was relating a history going back more than forty years, did not remember clearly that it was only the Veteran's left foot that had problems at the time. Thus, while that witness may have been sincere in relating that history, he may not have remembered it accurately. Similarly, the statement by the Veteran's half brother is not sufficient to overcome the strong, and direct, evidence showing that the Veteran only had left foot problems during service, and that his right foot was essentially normal at the time. The June 2021 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran's medical history and prior examinations conducted during the pendency of this claim, and which is supported by an explanation sufficient for the Board to make a fully informed decision. The examiner found that the Veteran's right foot conditions were not related to service because his right foot was normal during service (i.e., the service treatment records did not show a right foot condition). The Board finds that explanation sufficient, and consistent with the credible evidence. Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The Board also notes that the April 2013 VA examiner stated that the Veteran's hammertoe deformity of the second toe of the right foot, which was the only abnormality found on examination at the time, was likely due to normal aging and wearing tight-fitting boots (the examiner noted he wore such boots at the examination), which are independent factors weighing against a relationship to service. Although the Board, in its January 2020 remand, sought further medical opinion, the Board discerns no inadequacy as to those observations. With regard to the well-healed corrugated skin that was observed on examination during service, and which was attributed to the pre-service burns and surgery over the dorsum of the feet, the April 2013 VA examination report shows that the Veteran was not found to have scarring of the right foot on examination. The record does not otherwise show that the Veteran has had a skin condition or residuals of the pre-service burn injury during the pendency of this claim. Accordingly, the issue of whether the presumption of soundness applies is moot, since there is no current disability related to the corrugated skin found during service. See 38 U.S.C. § 1111. As a right foot condition did not otherwise manifest in service, the presumption of soundness is likewise moot: the Veteran's right foot is presumed sound at entry, and was sound throughout his service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). As the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.