Citation Nr: 21068838 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 18-50 092A DATE: November 15, 2021 ORDER Entitlement to service connection for bilateral foot disabilities, claimed as secondary to service connected type 2 diabetes mellitus (DMII), is denied. FINDING OF FACT The Veteran's bilateral foot disabilities were not caused or aggravated by his service connected DMII. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral foot disabilities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to May 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a foot condition due to DMII. In July 2018, the Veteran filed his notice of disagreement, was issued a statement of the case in October 2018, and in November 2018 perfected his appeal to the Board. In November 2019, the Board remanded the Veteran's claim for a new medical opinion regarding the etiology of any foot disability. In May 2020, the RO continued the denial the Veteran's claim, notifying the Veteran in a supplemental statement of the case. In June 2021 decision, the Board remanded the Veteran's claim for a new medical opinion to address all of the Veteran's foot disabilities. In September 2021, the RO again continued the denial of the Veteran's claim, notifying him in a supplemental statement of the case. For the reasons indicated in the discussion below, the opinion that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and is adequate to decide the claim on appeal. Thus, the AOJ complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Bilateral Foot Disabilities The Veteran's February 1968 service treatment records reflect that he suffered from a left foot callus and had broken his toe 2 years earlier, and his May 1968 medical examination report upon separation from service is normal. The Veteran submitted an October 2017 article which indicated that metatarsalgia could be the result of DMII, as DMII can cause damage to the nerves in the feet, leading to metatarsalgia. A March 2018 disability benefits questionnaire (DBQ) reflects that the Veteran has a diagnosis of metatarsalgia of the right foot, and the physician opined that the Veteran's right foot disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service illness, injury, or event. The physician noted that there are no available medical records documenting that it existed prior to service, and no pertinent service treatment records, therefore a nexus cannot be established. The physician also opined that the Veteran's right foot disability is less likely than not (less than a 50 percent probability) proximately due to, or the result of the Veteran's service connected DMII, stating that it is medically impossible to relate the two. She stated that metatarsalgia is a neuromusculoskeletal phenomenon that manifests as pain in the ball of the foot primarily due to overuse whereas coronary artery disease s/p angioplasty with stent replacement, and DMII with erectile dysfunction are dysfunctions of the coronary arteries, endocrine system, and neurovascular compromise the structures involved with erectile function respectively. Therefore, she concluded that a nexus cannot be established between the claimed foot disability, and coronary artery disease s/p angioplasty with stent replacement, or DMII with erectile dysfunction, making the claimed disability less likely than not (less than a 50 percent probability) proximately due to, or the result of his service connected disabilities. September 2018 medical treatment records indicate that the Veteran received treatment for painful toenails, reporting difficulty wearing shoes without periodic debridement, and corns and calluses of the feet. In a December 2019 DBQ, the physician opined that the Veteran's foot disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, noting that there is no objective evidence contained within the file which demonstrates related complaints or treatment during service. He also stated that his foot disability was less likely than not (less than a 50 percent probability) proximately due to, or the result of his service connected DMII, stating that while DMII has been associated with metatarsalgia, it is not an established primary etiology of metatarsalgia in medical literature. The physician also reported that the Veteran's foot disability was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by his service connected DMII, stating that the Veteran's DBQ demonstrates intermittent foot pain which has not necessitated orthotics or prior procedures which falls within the projected natural history of the condition, and does not represent aggravation beyond natural progression. The Veteran submitted another article from WebMD which reflected that there is an association between gout and DMII, indicating that gout causes inflammation in the body, and that some experts believe inflammation may also play a role in DMII. February 2020 medical treatment records reflect that the Veteran reported suffering from gout, and complained of pain in the left heal, left great toe, and dorsal aspect and left ankle. April 2021 VA treatment records reflect a diagnosis of gout. In an August 2021 DBQ, the examining physician opined that the Veteran's foot disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness stating that the Veteran's onychomycosis and gout occurred more than 40 years after service, and thus are not directly related to his service. She also opined that the Veteran's foot disability was less likely than not (less than a 50 percent probability) proximately due to, or the result of his service connected disability, reporting that onychomycosis is acquired through direct contact of the nail with dermatophytes, yeast, or non-dermatophyte molds in the environment, or through the spread of fungal infection from affected skin. The physician also stated that DMII and peripheral arterial disease are risk factors for onychomycosis, and gout is monosodium urate crystal deposition disease where DMII is a risk factor, and may not be causal. The physician noted diagnoses of gout, and onychomycosis of bilateral toenails, and the Veteran reported that he noticed pain in his toes suddenly one afternoon which was so painful, he could not use bedsheets. He also stated that a VA podiatrist told him he had a fungal infection in his toenails, which had been present for 15 years. The Veteran reported intermittent pain from gout, and no symptoms from onychomycosis. The physician noted mild or moderate symptoms due to hallux valgus, describing thick, elongated, dystrophic hallux nails with discoloration, and reported that the Veteran has pain in both feet when his gout flares up. The issue of establishing a relationship to a service connected disease or injury such as DMII is a complex medical question since it is beyond any readily observable cause and effect relationship. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). Thus, to the extent the Veteran asserts a nexus for his bilateral foot disabilities, his statements in this regard are not competent. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The record contains multiple negative nexus opinions, including one provided by the August 2021 physician who stated that the Veteran's bilateral foot disabilities were less likely than not the result of, or aggravated by the Veteran's service connected DMII, and there is no positive nexus opinion of record. As the physician provided a thorough rationale to support her conclusion that the Veteran's bilateral foot disabilities are not related to his service connected DMII based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). While the December 2019 opinion was inadequate because it did not address all of the Veteran's foot disorders, it is nevertheless entitled to some probative weight as to the disabilities it did address, because the examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains"). As to the medical treatise evidence, while such evidence may suffice to establish nexus in certain instances, where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion," Sacks v. West, 11 Vet. App. 314, 317 (1998), here the treatise information provided by the representative presents generic statements and is outweighed by the physician's opinion specifically indicating a lack of causation and aggravation after a thorough examination of the Veteran and a review of the Veteran's claims file. Therefore, weighing the August 2021 physician's opinion against the Veteran's contentions, the physician's opinion specifically indicating a lack of causation or aggravation in this case is of greater probative weight than the Veteran's contentions, even with supporting medical literature, that the DMII caused his bilateral foot disabilities. For the above stated reasons, the preponderance of the evidence weighs against a relationship between the bilateral foot disabilities and service connected DMII, therefore service connection for bilateral foot disabilities is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the above evidence reflects, the issue of entitlement to service connection for bilateral foot disabilities on a direct basis has not been raised by the Veteran or reasonably raised by the evidence of record, and the Board therefore need not address this theory of entitlement. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). The Board is sympathetic is to the Veteran's contentions, and must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103 (a), but is however bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.105. Application of those laws and regulations to the facts of this case reflect that the preponderance of the evidence is against the claim for service connection for bilateral foot disabilities. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.