Citation Nr: 21071121 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-23 110 DATE: November 29, 2021 ORDER Entitlement to service connection for a right foot disability, to include hammertoe, hallux valgus, and arthritis is denied. Entitlement to service connection for a left foot disability, to include hammertoe, hallux valgus, calcaneal spurs, and arthritis is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's right foot disability was not incurred or aggravated in the line of duty during active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). 2. The Veteran's left foot disability was not incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability, to include hammertoe, hallux valgus, and arthritis, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability, to include hammertoe, hallux valgus, calcaneal spurs, and arthritis, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the Army National Guard from June 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appellant testified at a Board hearing in July 2019. A copy of the transcript has been associated with the record. The Board remanded this case to the AOJ in November 2020 for additional development. The AOJ has since granted service connection for tinnitus, meaning that issue is no longer on appeal. With respect to the issues regarding service connection for bilateral foot disabilities, the Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, though, another remand is required for the hearing loss claim. Service Connection 1. Entitlement to service connection for a right foot disability, to include hammertoe, hallux valgus, and arthritis 2. Entitlement to service connection for a left foot disability, to include hammertoe, hallux valgus, calcaneal spurs, and arthritis A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the Armed Forces Reserves or the National Guard of any state. 32 U.S.C.A. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). In the absence of evidence that the claimant died or became disabled in the line of duty during the period of training, the period of ACDUTRA would not qualify as "active military, naval, or air service." See 38 U.S.C. § 101 (2)-(24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101 (21) and (24); 38 C.F.R. § 3.6 (d) and (e). Accordingly, service connection may be granted for disability resulting from injury incurred or aggravated while performing INACDUTRA. The advantage of certain evidentiary presumptions provided by law that assist Veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that the presumptions of service connection and the presumptions of soundness and aggravation cannot apply to claimants whose claims are based only on a period of active duty for training); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that her foot disabilities were incurred during service because of the "wear and tear" of standing a lot. For the reasons set forth below, the Board finds that the evidence is insufficient to grant the claim and it must be denied. Turning to the evidence, the Board initially notes that the Veteran's service treatment records (STRs) are silent for any complaints of foot problems. At medical examinations in June 1979 and April 1980, clinical evaluation of the Veteran's bilateral lower extremities was normal. In her report of medical history in June 1979, the Veteran denied foot trouble. In April 1980, she reported that she was "in very good health." In July 2019, the Veteran testified at a Board hearing. She reported her belief that her foot problems were caused by the wear and tear of service on her feet. The Veteran testified that her ankles were always swollen and her feet burned in service, so she went to see a podiatrist. She testified that her ankles and feet still got swollen, and her podiatrist said that it could be from her diabetes mellitus or her service, including her combat boots. The Veteran reported that she found the boots comfortable, but her foot problems could be from standing a lot and the stress on her feet. The Veteran was afforded a VA examination in July 2020. She was noted to have had bilateral hammer toes and hallux valgus, arthritis, and a calcaneal spur of the left foot. The Veteran reported that her foot pain began during basic training and had gotten progressively worse. The VA examiner reviewed the Veteran's podiatry records. Dr. A.G.K., the Veteran's private podiatrist who diagnosed the conditions, indicated that her midfoot arthritis was consistent with age. The VA examiner opined that the Veteran's hammer toe, hallux valgus, calcaneal spur, and arthritis were less likely than not incurred in service. Dr. K. diagnosed the Veteran with the disabilities over twenty years after her service, and the records did not show that complained of or was evaluated for foot troubles during service. The Veteran was afforded another VA examination in August 2021. She reported that she was seen for foot problems during service, but the records were lost. Her pain began in basic, and had gotten worse. The VA examiner reviewed the Veteran's testimony, STRs, and outpatient records. The examiner opined that it is less likely than not that the Veteran's exostosis status post osteotripsy, hallux valgus, hammer toes, left achilles tendinitis, and calcaneal spurs were incurred in or caused by service. The Veteran's outpatient notes extensively document her comorbidities of diabetes mellitus and diabetic peripheral neuropathy. The medical literature shows a connection between diabetes and chronic foot diagnoses due to damage to the nerves and decreased blood flow, which leads to increased risks of skin issues, such as corns and calluses, and abnormal gait and bone and joint abnormalities, such as hammer toes and arthritis. Additionally, clinically speaking, most people experience foot pain during high impact activities, but it is transient and without long-term sequelae. While the Veteran experienced foot pain in service, it does not explain her current symptoms and diagnoses, which are explainable diabetes, diabetic peripheral neuropathy, and age-related changes. Specifically, the examiner noted that bone spurs are age-related. In sum, the examiner could not clinically say that there was at least a 50 percent probability that the Veteran's foot disabilities were incurred in service based on her reports. Based on a review of the evidence, the Board concludes that service connection for a left foot or right foot disability, including exostosis status post osteotripsy, hallux valgus, hammer toes, left achilles tendinitis, arthritis, and calcaneal spurs, is not warranted. The evidence is against a finding that the Veteran's foot disabilities were incurred in the line of duty during ACDUTRA or INACDUTRA. The August 2021 VA examiner directly addressed the Veteran's contentions and explained why her foot disabilities are more likely attributable to diabetes, peripheral neuropathy, or age, and not service. In concluding that the Veteran's foot disabilities were not incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA, the Board notes that the Veteran's STRs do not show that she became disabled by a foot disability in the line of duty. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law permits a grant of service connection by evidence establishing an etiological relationship between an injury or disease in the line of duty during ACDUTRA or INACDUTRA and a post-service disability. As the record shows that the Veteran's foot disabilities were not diagnosed during a period of ACDUTRA or INACDUTRA, or incurred in the line of duty, service connection is not warranted. While the Veteran believes that her foot disabilities are related to service, the Board concludes that the Veteran is not competent to make this determination. The issue is medically complex, as it requires the interpretation of symptoms and application of medical principles by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran has any medical training. See 38 C.F.R. §§ 4.125, 4.130. Therefore, the Board must rely on the competent evidence, particularly the August 2021 VA examination report, in making its decision. In this regard, the Board affords the July 2020 VA examination little weight, but the August 2021 VA examination report receives significant weight. While the July 2020 VA examination is evidence against the Veteran's claim, it is afforded little weight because it is based on lack of documentation and does not address the Veteran's contentions. Conversely, the August 2021 VA examination report is afforded significant weight because it addresses the Veteran's contentions, directly reviewed her testimony regarding onset of symptoms, and used literature and medical principles to support the conclusion. With one adequate opinion against the Veteran's claim receiving significant weight, the Board finds that the preponderance of the evidence is against service connection. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination for hearing loss in August 2021. In the examination report, under the section entitled "Etiology" for hearing loss, when asked if an opinion was provided for either ear, the VA examiner responded "no." Under the section entitled "Etiology of tinnitus," the VA examiner wrote, "There are no STRs available to discern audiometric threshold shifts." This VA examination is inadequate because, in the November 2020 remand, the Board required the AOJ to obtain a medical opinion addressing certain evidence in the claims file, and included specific questions for the examiner to answer. The resulting August 2021 VA examination did not answer the questions posed by the Board in the previous remand, nor did it directly address the evidence as directed. Therefore, another remand is required for an adequate opinion. Furthermore, the Board notes that the Veteran's service treatment records are indeed in the claims file, and were added in January 2021, before the August 2021 VA examiner noted that the records were absent. The STRs include audiometric testing from June 1979 and April 1980, which must be considered on remand. Finally, the AOJ indicated that service connection for bilateral hearing loss was denied after the August 2021 VA examination because she did not meet the threshold requirements for a hearing disability; however, the Veteran met the requirements in the July 2020 VA examination. The Board notes that service connection may, generally, not be granted without a current disability. However, service connection may be granted for a disability existing on the date of application or at any time during the appellate period. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As such, a remand is necessary for an adequate opinion addressing the hearing loss that existed in the July 2020 VA examination. On remand, the examiner should also address the change in the Veteran's hearing over time, and address whether the Veteran's hearing improved in August 2021, the reported results were a typographical error, or the results are inaccurate. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran's bilateral hearing loss. The electronic claims file, to include a copy of this remand, the Veteran's July 2019 testimony, and a list of all periods of ACDUTRA service, must be made available to and be reviewed by the examiner. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded an in-person examination, or by other means if an in-person examination is not feasible. The examiner should respond to the following questions: (a.) Prior to rendering an opinion, the examiner should consider that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). (b.) The examiner should also consider and address the Veteran's July 2019 testimony regarding specific in-service noise exposures, including using grenades during basic training and being awarded a rifle M16 qualifying badge, and the onset of tinnitus and hearing loss either during Guard duty or shortly after separation. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss is etiologically related to, attributable to, or caused by a qualifying period of active service, or was incurred or aggravated during any period of ACDUTRA or INACDUTRA. (d.) The examiner should note that service connection may be granted for a disability existing on the date of application or at any time during the appellate period even if resolved at the time of adjudication, and note that bilateral hearing loss was diagnosed by the July 2020 VA examiner. The examiner should express an opinion as to whether: the Veteran's hearing improved in August 2021, or the reported results were erroneous or otherwise inaccurate. (Continued on the next page) A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.