Citation Nr: 21072043 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 12-08 938 DATE: December 2, 2021 ORDER Service connection for nerve damage of the feet, to include as secondary to bilateral knee DJD and/or tinea pedis, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's nerve damage of the feet did not have onset during service, did not manifest to a compensable degree within one year of separation from service, and it is not otherwise related to service, to include as due to, or aggravated beyond the natural progression by, the service-connected bilateral knee DJD or tinea pedis. CONCLUSION OF LAW The criteria for service connection for nerve damage of the feet, to include as secondary to the service-connected bilateral knee DJD and/or tinea pedis, have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to March 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for nerve damage to feet. In November 2011, VA received the Veteran's Notice of Disagreement (NOD). In March 2012, the RO issued a Statement of the Case (SOC). In April 2012, VA received the Veteran's VA Form 9 appeal to the Board. In July 2016, the Board remanded the case for further development and adjudicative action. In an April 2018 decision, the Board referred a claim to reopen a previously denied claim for service connection for frostbite of the feet and pes planus previously denied by a May 1990 rating decision to the RO for appropriate action. In this regard, the Board found that the claim to reopen was reasonably raised by a February 2011 VA examination report and October 2010 correspondence. The Board concluded that the referred claim to reopen also encompassed degenerative joint disease (DJD) of the feet. However, the Board noted that the claim for nerve damage of the feet on appeal had a distinct factual basis from the claim denied by the May 1990 rating decision. Specifically, the Board indicated that the claim on appeal related to a neurological, rather than musculoskeletal disability, and given the distinct pathologies for the neurological and musculoskeletal disabilities, concluded that no new and material evidence was required to reopen the claim on appeal. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The Board remanded the issue of service connection for nerve damage of the feet for further development and adjudication. However, the Board directed completion of development of the referred claim to reopen prior to further development and adjudication of the claim for service connection for nerve damage of the feet. In a September 2018 decision, the Board remanded the case for further development and adjudicative action, finding that the issue of service connection for bilateral nerve damage of the feet was inextricably intertwined with the referred claim of whether new and material evidence had been received sufficient to reopen the previously denied claim of service connection for pes planus and DJD of the feet. See Harris v. Derwinski, 1 Vet. App. 80 (1991). As the RO had not yet issued a decision regarding the referred claim, the Board again directed the RO to complete development of the referred claim to reopen prior to further development and adjudication of the claim for service connection for bilateral nerve damage of the feet. In a June 2020 decision, the Board noted that development of the referred claim to reopen still had not been completed and concluded that there had not been substantial compliance with the previous Board decision's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The claim for service connection for service connection for bilateral nerve damage of the feet was again remanded pending development of the referred claim to reopen. In an August 2021 rating decision, the RO denied reopening of the previously denied claim for service connection for pes planus because the evidence received was not new and material. The RO also denied service connection for DJD of the feet. In so doing, the RO correctly acknowledged that no claim for service connection for DJD of the feet had been denied by a prior rating decision and therefore did not require new and material evidence to reopen that claim. As the RO has issued a rating decision regarding the referred claim now bifurcated as a claim to reopen the previously denied claim for service connection for pes planus and an initial claim for service connection for DJD of the feet no further delay is warranted prior to adjudication of the claim for service connection for bilateral nerve damage of the feet. Service Connection 1. Entitlement to service connection for nerve damage of the feet, to include as secondary to service-connected bilateral knee DJD and/or tinea pedis. In his original October 2010 claim, the Veteran contended that his "bilateral foot condition" was secondary to his service-connected bilateral knee disabilities "due to nerve damage." In the April 2018 decision, the Board raised theories of direct entitlement, i.e. that the nerve damage of the feet was related to an in-service event, injury, or disease, and secondary entitlement based on causation and/or aggravation beyond the natural progression by the Veteran's service-connected tinea pedis. The present decision will address both the direct theory and two secondary theories of entitlement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, including organic diseases of the nervous system, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for a claimed disability may be established on a secondary basis if that disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection as secondary to a service-connected disability requires a current disability that was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Regarding aggravation, 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. Service treatment records (STRs) from November 1978 indicate that the Veteran reported "cold feet" and "numbness." The Veteran had no feeling between the 3rd and 4th toes of his right foot, "frost discoloration," and "poor to no circulation." The assessment was questionable frostbite. STRs dated November 28, 1978. STRs from September 1979 indicate that the Veteran had a toenail removed from his left foot. STRs dated September 18, 1979. The Veteran's January 1980 separation examination includes a crossed out notation of pes planus. However, a prior August 1977 STR noted "fallen arches" after the Veteran described pain along the plantar aspect of the right foot. STRs dated August 18, 1977. Nonetheless, as noted in the Introduction, the issue of service connection for pes planus is not the subject of the current appeal. There is no lay or medical indication of any neurological symptoms associated with the feet within one year of separation from service in March 1980. The Veteran was diagnosed with diabetes mellitus in 2008. See VA radiation oncology note dated October 15, 2008. An August 2005 MRI revealed at bulging disk at the L4-5 vertebrae and subsequent MRIs have revealed multilevel degeneration of the lumbar spine (see below). See VA primary care lab letter dated August 1, 2005. In October 2008, the Veteran reported "tingling" in his feet to VA treatment providers, "consistent with neuropathy, or nerve damage, likely from ... diabetes." VA emergency department education note dated October 21, 2008. In September 2009, the Veteran reported "painful sharp, shooting pains in his feet at night" and "sometimes a tingling/burning sensation during the day." A treating VA physician speculated that the Veteran "could have neuropathy from either the frostbite, ... diabetes mellitus, ... or lumbar disc." However, the physician noted that the Veteran had no pain at the time of the initial frostbite injury. VA podiatry attending note dated September 8, 2009. Following a November 2009 MRI, a VA neurosurgeon opined that the Veteran's neurological symptoms in the feet were "likely related to his diabetes," with no clear indication of lumbosacral involvement. VA neurosurgery consult dated November 19, 2004. Thereafter, a December 2009 EMG was positive for "peripheral polyneuropathy," with no specific indication of whether the polyneuropathy was due to diabetes or a disability of the lumbar spine. VA physical medicine rehab consult dated January 28, 2010. A February 2011 VA examiner noted that the Veteran's history of "diabetes and chemotherapy" contributed to the peripheral polyneuropathy. An accompanying opinion stated that a "[m]edical opinion is not warranted as there is evidence in [treatment] records that attribute [bilateral] foot pain to [bilateral] knee condition." However, the examiner failed to identify these records purportedly from the Richmond VA Medical Center; review of the claims file, which includes continuous VA treatment records from approximately January 2002, does not reveal any records containing such nexus evidence. The Veteran received another EMG in May 2014. The EMG revealed "findings indicative of lumbar-sacral radiculopathy, multiple levels with active and chronic [reinnervation] changes," although "superimposed sensory and motor polyneuropathy" could not be ruled out. A subsequent September 2014 MRI revealed findings including "severe" spinal stenosis at L4-L5," "severe left-sided neuro foraminal narrowing at L5-S1," and "grade 1 anterolisthesis of L4 on L5." In the July 2016 decision, the Board concluded that the February 2011 VA opinion was inadequate due to failure to provide an etiology opinion and sought a new opinion regarding secondary nexus to the bilateral knee DJD. In August 2016, another VA opinion (completed by the February 2011 examiner) was associated with the claims file. First, regarding nexus to the service-connected bilateral knee DJD, the examiner opined that the Veteran's neurological symptoms experienced in the feet were less likely than not proximately due to the service-connected bilateral knee DJD. The examiner reasoned that the Veteran's diagnoses of peripheral neuropathy, caused by diabetes, and radiculopathy could not be caused by knee DJD. As noted in the Introduction, the April 2018 Board decision sought opinions regarding direct nexus to service and secondary nexus to the service-connected tinea pedis. In May 2018, a third VA opinion was associated with the claims file alongside a VA peripheral nerves examination report. The examiner noted only a diagnosis of lumbar radiculopathy and concluded that the lumbar radiculopathy was less likely than not related to an in-service injury, event, or disease. The examiner reasoned that the Veteran's STRs contained no indication of a diagnosis of lumbar radiculopathy and that the radiculopathy symptoms began almost 30 years after the Veteran was discharged from service. Furthermore, regarding the in-service frostbite injury, the examiner noted that the Veteran did not report pain at the time of the injury, "making it much less likely" that the current neurological symptoms were related to frostbite. The examiner stated that "[t]here is no plausible biological mechanism by which a history of frostbite while in-service would lead to symptoms almost 30 years later, without having intervening symptoms." Moreover, regarding nexus to the tinea pedis, the examiner indicated that there was no active tinea pedis; nonetheless, the examiner stated that "[e]ven an inactive tinea pedis condition is not the cause of his current symptoms, since there is no plausible biological mechanism by which the Veteran's nerve damage of the feet (i.e. lumbar radiculopathy) would be related to or aggravated by a history of tinea pedis." In the September 2018 decision, the Board indicated that the May 2018 examiner did not address the "diagnosed" peripheral neuropathy and, moreover, and that the examiner must address the tinea pedis, regardless of whether an active condition existed at the time of examination, since there was evidence that the Veteran had active tinea pedis during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Finally, of record is a March 2019 VA opinion (also completed by the May 2018 examiner) addressing direct nexus to service and secondary nexus to tinea pedis. First, the examiner reiterated that the Veteran had lumbar radiculopathy but not peripheral neuropathy. The examiner noted that the November 2009 MRI indicated a diagnosis of lumbar radiculopathy that was confirmed by the May 2014 EMG and subsequent September 2014 MRI. In a subsequent August 2020 addendum, the examiner noted that the Veteran did not have a diagnosis of peripheral neuropathy during the May 2018 examination and that the "symptoms attributed to the nerve damage of the feet condition were due to a diagnosis of lumbar radiculopathy present since 2009." Regarding direct nexus to service, in the March 2019 opinion, the examiner stated that the Veteran had a diagnosis of lumbar radiculopathy and not a neurological disability of the feet, to include peripheral neuropathy, and that therefore no neurological disability of the feet could have had onset during service or be otherwise related to service, to include the November 1978 assessment of questionable frostbite. Similarly, the examiner noted that there was no neurological disability of the feet that could have been caused or aggravated by the service-connected tinea pedis. Nonetheless, the examiner reiterated the May 2018 opinion, stating that there was no plausible biological mechanism that would allow tinea pedis to cause or aggravated a neurological disorder of the feet, to include peripheral neuropathy. Finally, the examiner stated that, even if peripheral neuropathy were present, it would be caused by "an entrapment of the nerve, a vitamin or nutritional deficiency, diabetes, or other metabolic problem," and not a "superficial condition of the skin" like tinea pedis. In light of the foregoing, service connection for the claimed nerve damage of the feet based on any of the theories raised during the period on appeal. At the outset, the statement by a treating VA physician in September 2009 that the Veteran could have neuropathy from either the frostbite, diabetes, or lumbar radiculopathy is afforded no probative value because the opinion is speculative and unsupported by any rationale. Next, the May 2018 examiner's diagnosis of lumbar radiculopathy, but not peripheral neuropathy, is supported by a thorough review of the medical history, including the aforementioned November 2009 MRI, December 2009 EMG, May 2014 EMG, and September 2014 MRI, and lay statements to treatment providers. As the examiner, in the March 2019 VA opinion, provided adequate grounds for omitting a diagnosis of peripheral neuropathy, no further opinion is warranted for peripheral neuropathy. Although a subsequent June 2021 VA examination noted that the Veteran had a diagnosis of "diabetic peripheral neuropathy," the examination did not rely on any objective imaging studies, unlike the May 2018 opinion, and gave no basis for the diagnosis. Accordingly, more probative value is afforded to the May 2018 opinion. Regarding direct nexus to service, the May 2018 examiner provided a fully articulated opinion supported by a reasoned analysis of the Veteran's in-service and post-service medical history. Moreover, notwithstanding whether lumbar radiculopathy or peripheral neuropathy is the proper diagnosis, the examiner noted lack of pain following the initial frostbite injury and length of time between the initial frostbite injury and initial symptoms; these findings are relevant regardless of the pathology of the Veteran's neurological symptoms. Accordingly, the May 2018 opinion (and March 2019 opinion reiterating the May 2018 opinion's findings) is afforded significant probative value as to direct nexus to service. Regarding secondary nexus to the service-connected bilateral knee DJD, the August 2016 opinion regarding causation was clearly articulated and was also based on a reasoned analysis of the Veteran's pertinent medical history. Accordingly, the August 2016 opinion is afforded significant probative value as to secondary causation. Regarding aggravation, none of numerous medical opinions provided during the period on appeal indicate that the Veteran's neurological symptoms of the feet are worsened beyond their natural progression by the service-connected bilateral knee DJD. As noted above, probative value is also assigned to the May 2018 examiner's finding in the August 2020 addendum that the Veteran did not have any diagnosis related to nerve damage of the feet; thus, as the examiner indicated with regard to tinea pedis, there is no disability related to nerve damage of the feet that could have been aggravated. Similarly, the other medical evidence of record, including the Veteran's extensive VA treatment records, provide no indication that the Veteran's neurological symptoms are aggravated by or are in any way related to the bilateral knee DJD. Finally, although the Veteran may believe that his neurological symptoms of the feet are aggravated by the service-connected bilateral knee DJD, his opinion is not competent in this regard. Specifically, the Veteran's neurological symptoms and bilateral knee DJD involve complex internal processes distinguishable from lay observation. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his opinion is afforded no probative value Finally, regarding causation and aggravation by the service-connected tinea pedis, the May 2018 examiner again provided a clearly articulated opinion (reiterated by the March 2019 opinion) based on consideration of the Veteran's medical history. The opinion is also supported by reasoned analysis, namely, that there exists no plausible biological mechanism by which tinea pedis, a superficial condition of the skin, could cause or aggravate any neurological disorder of the feet, assuming the Veteran had such a diagnosis. Accordingly, the May 2018 opinion is afforded significant probative value as to secondary causation and aggravation by the service-connected tinea pedis. In conclusion, the preponderance of the evidence shows that the Veteran's claimed nerve damage of the feet did not have onset during service, or within one year of separation, and is not otherwise related to service. Furthermore, the preponderance of the evidence shows that the claimed nerve damage of the feet is not proximately due or aggravated beyond its natural progression by the service-connected bilateral knee DJD or tinea pedis. Finally, the preponderance of the evidence indicates that the Veteran does not have a diagnosis of nerve damage of the feet at all; rather, the most probative medical evidence of record shows that the Veteran's symptoms are due to lumbar radiculopathy. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Accordingly, service connection for nerve damage of the feet is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.