Citation Nr: 21071230 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-00 431 DATE: November 30, 2021 ORDER Entitlement to service connection for a left foot condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes that the Veteran's left foot condition is not secondary to service-connected disability including his service-connected ankle disabilities, and is not otherwise related to an in-service injury or disease. 2. The Veteran's obesity is not an "intermediate step" between service-connected disability and the claimed left foot condition. CONCLUSION OF LAW The criteria for service connection for a left foot condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1985 to February 2009. The Board most recently remanded this case to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in December 2020 for additional development. After substantial compliance with the Board of Veterans' Appeals (Board) remand directives by the AOJ, the case has since been returned to the Board for appellate review. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to secondary service connection, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The Board notes that obesity itself it is not a disability for VA purposes. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. 38 C.F.R. § 3.310; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). For obesity to be an intermediate step, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the veteran to become obese or aggravated the veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Id. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for a left foot condition The Veteran asserts that his left foot condition, diagnosed as left foot hallux valgus, left foot mild pes planus, and degenerative joint disease of the first metatarsophalangeal joint, is related to his service-connected ankle disabilities and specifically to his left ankle disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will focus on entitlement to secondary service connection. Athe Veteran asserted that his left foot condition developed secondary to obesity which was caused by his service-connected left ankle disability. Thus, the question becomes whether the current disability is etiologically related to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board concludes that, while the Veteran has current diagnoses of left foot hallux valgus and mild pes planus, presently asymptomatic, the preponderance of the evidence weighs against finding that the Veteran's left foot condition began during service or is otherwise related to service or a service-connected disability. Also, the Board concludes that the Veteran's obesity is not an "intermediate step" between service-connected left ankle disability and the claimed left foot condition. Treatment records show the Veteran was not diagnosed with left foot hallux valgus, pes planus, and degenerative joint disease of the first metatarsophalangeal (MTP) joint until 2014, over 5 years after his separation from service. While the Veteran is competent to report having experienced intermittent symptoms of bilateral foot pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of left foot hallux valgus, mild pes planus, and degenerative joint disease of the first MTP joint. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In October 2013, the Veteran had a VA examination for foot conditions. The Veteran's claims file was reviewed. The Veteran did not have, nor ever had, a diagnosed foot condition. He described occasional pain in both feet. The examiner found that his occasional bilateral pain did not result in functional impairment and did not impact his ability to work. The examiner found that he had subjective complaints of pain without objective findings in both feet. At his September 2016 Board hearing, the Veteran asserted that his left foot condition, manifested as occasional pain, was secondary to his service-connected ankle conditions. examination. The Veteran was diagnosed with bilateral foot hallux valgus, left foot mild pes planus, presently asymptomatic, and degenerative joint disease of the first MTP joint. He reported the onset of foot pain in 2012 that was worse with prolonged standing. He reported that his foot pain resolved approximately three years earlier when he stopped working. On examination, no pain, functional loss, or limitation of motion was found. The examiner opined that the claimed condition was less likely than not proximately due to or the result of his service-connected bilateral ankle disabilities. The examiner explained that the Veteran is service connected for degenerative joint disease of the left ankle and a right ankle sprain. There is no medical literature that suggests a clearly defined causative relationship between these conditions and his left foot hallux valgus and pes planus. Furthermore, the ankle conditions are not severe enough to cause long-term alterations in mechanics of ambulation that would affect the Veteran's left foot degenerative joint disease diagnosis. In his September 2020 informal hearing presentation, the Veteran presented new contentions that required an addendum medical opinion. The Veteran asserted that his left foot condition developed secondary to obesity which was caused by his service-connected left ankle disability. In August 2021, the Veteran underwent his most recent VA examination for foot conditions. He was diagnosed with left foot hallux valgus, left foot pes planus, and degenerative joint disease of the first MTP joint of the left foot. He reported left foot pain while walking, standing, and wearing boots. He reported left foot pain and swelling that had progressed. He did not take medication to treat his symptoms. The Veteran reported flare-ups of moderate throbbing pain when walking or standing for long periods. Pain was not noted upon examination. A January 2014 image study noted left foot mild hallux valgus, left foot mild pes planus, and degenerative joint disease of the first MTP joint. In response to the question of whether the examiner was able to determine the baseline level of severity of the claimed condition based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by service-connected left ankle disability, the examiner stated, "yes" and indicated that the baseline was that the condition was asymptomatic and that the current severity of the left foot condition was not greater that the baseline. The examiner explained that the left foot hallux valgus, left foot pes planus, and degenerative joint disease of the first MTP joint of the left foot do not appear have existed prior to service. Therefore, the left foot conditions are not aggravated beyond the natural progression by his left ankle disability. Also, the examiner opined that it is less likely as not that the Veteran's service-connected disabilities proximately caused or aggravated his left foot disability. He explained that the Veteran's left foot hallux valgus, left foot pes planus, and degenerative joint disease of the first MTP joint of the left foot are unrelated to his service-connected degenerative joint disease of his left ankle. There is no medical link to explain any connection. Further, the examiner opined that it is less likely as not that the Veteran's service-connected disabilities, either individually or collectively, caused the Veteran to become obese. The examiner explained that obesity is primarily a problem of excess calories. The Veteran's service-connected degenerative joint disease of his left ankle did not result in him consuming excess calories, nor is there any evidence in his medical records that he was on medication that would have led to weight gain as an adverse effect of treatment. In September 2021, the Veteran's representative asserted that the Veteran's weight gain for obesity to be an intermediate step, the evidence would first need to reflect that a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity. The August 2021 examiner opined that it is less likely as not that the Veteran's service-connected disabilities, either individually or collectively, caused the Veteran to become obese or aggravated the Veteran's obesity. As the threshold criteria was not met for obesity to be an intermediate step, the subsequent criteria were not addressed. (Continued on the next page) The October 2013, August 2021 VA examiners' opinions are probative, because they are based on accurate medical histories and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the preponderance of the evidence is against the claim of entitlement to service connection for a left foot condition, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.