Citation Nr: 21068623 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-44 255 DATE: November 10, 2021 ORDER Service connection for left foot arthritis is denied. FINDING OF FACT The weight of competent and credible evidence is against finding that left foot arthritis began during active service or is otherwise related to an in-service injury or disease, to include exposure to cold weather. CONCLUSION OF LAW The criteria for service connection for left foot arthritis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from July 1959 to August 1991 as a chief warrant officer and helicopter pilot with service in the Republic of Vietnam and in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) from a 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in 2018. The Veteran appeared in a 2021 hearing. A transcript of that hearing has been associated with the record. The issue was previously before the Board. In July 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain an addendum VA medical opinion with rationale discussing the likely cause if it was not the Veteran's service. In August 2021, the AOJ scheduled the Veteran for a VA examination and obtained a VA medical opinion. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in August 2021. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Service connection for left foot arthritis The Veteran contends that his current left foot arthritis was caused by constant exposure to cold while piloting helicopters in service. The Veteran also contends that he has had symptoms continuously since service and testified that he had "flaking skin" and "pain when they are thawing." During the Board hearing, the Veteran described his exposure to cold conditions in Korea and as a helicopter pilot in Alaska. He reported that after warming, he was able to continue his Army duties and participate in routine physical training including running. He also reported that he had been diagnosed with arthritis in several parts of both feet. In April 2018, the Veteran was afforded a VA examination for his left foot arthritis. The Veteran reported that at discharge he thought that his feet were "ok except for the fungal infection." He believed that his arthritis was directly related to all the training exercises and wearing combat boots for 32 years. The examiner opined, however, that the Veteran's left foot arthritis was less likely than not caused by his service as the "Veteran was discharged from military service in 1991 with no report of a foot pain or history of injury" and as it is "now 26 later with minimal [degenerative joint disease] of the feet." In a July 2021 remand, the Board found that the April 2018 VA examination was inadequate. First, the examiner effectively engaged in an improper credibility determination by relying on the absence of documented medical treatment records over the Veteran's lay statements of continuous symptoms since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The examiner also did not explain the significance of "minimal" degenerative joint disease of the feet in relation to the passage of time since discharge. In August 2021, the Veteran was afforded another VA examination for his claim of service connection for left foot arthritis. The Veteran reported that he had trouble with his foot for "sometime" and that he was told that he had "severe arthritis." The Veteran also stated that he was in active service for 32 years and that onset was during his service in Korea when his feet were "always wet and cold." The Veteran contended that "cold weather caused my arthritis in my foot." The Veteran also reported that he walked flat-footed and that he had to wear high heel boots for stability. The examiner opined that the Veteran's left foot arthritis was less likely than not incurred in or caused by the cold. The examiner first noted that the Veteran's first complaint of left foot pain was in 2017, or over 2 decades after discharge, and that risk factors that have been linked to the pathogenesis of osteoarthritis included aging, joint injury, obesity, genetics, and other factors but indirectly stated that the factors did not include exposure to cold weather as contended by the Veteran. The examiner then stated that aging was "clearly related to osteoarthritis with both incidence and prevalence of osteoarthritis increasing with age," implicitly attributing the Veteran's arthritis to his age over his active service and citing a medical authority. The Board finds that the August 2021 VA examination is adequate as the opinion is supported by the evidence of record and medical literature. Moreover, to the extent the Veteran asserts that a relationship exists between his left foot arthritis and exposure to cold weather during his active duty, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's left foot arthritis is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran's left foot arthritis have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran's left foot arthritis and exposure to cold weather, service connection on a direct basis must be denied. Review of the Veteran's file also supports the August 2021 VA examiner's opinion. Service treatment records show that the Veteran reported having no foot trouble in October 1963, October 1965, December 1965, April 1967, January 1969, and in October 1970. In June 1972, the Veteran reported tinea pedis, but his feet were normal in December 1972, January 1976, June 1977, January 1978, December 1978, February 1979, December 1979, and in January 1981. In September 1981, he reported slight tenderness over mid foot but in December 1982, his feet were normal. In June 1983, the Veteran reported rash and warts on his foot, but his feet were again normal in December 1983, December 1984, January 1986, November 1987, and in October 1989. In summary, there was no complaint of, treatment for, or diagnoses of left foot arthritis during service nor any reports of "flaking skin" or pain. In November 2013, during a Gulf War General Medical Examination, the examiner noted that the Veteran had no history of "cold related hospitalization or surgery; cold related trauma; cold related neoplasm." The Veteran also denied having a history of "other cold injury" when reporting a cold injury to hands in 1965 in Alaska. The Board finds that had the Veteran experienced symptoms of left foot arthritis or continuous symptoms due to exposure to cold weather, he would have reported it in a clinical setting as he did with his other ailments. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The weight of competent and credible evidence is against the Veteran's claim, and as such entitlement to service connection for left foot arthritis is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.