Citation Nr: 21073289 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-40 893A DATE: December 8, 2021 ORDER Service connection for bilateral flat feet is denied. Service connection for bilateral plantar fasciitis is denied. Service connection for bilateral foot discoloration is denied. FINDINGS OF FACT 1. The Veteran's bilateral flat feet did not onset in and are not causally related to his service. 2. The Veteran's bilateral plantar fasciitis feet did not onset in and are not causally related to his service. 3. The Veteran's bilateral foot discoloration did not onset in and are not causally related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral flat feet have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for bilateral foot discoloration have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from August 1997 to January 2006. In October 2019, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. In January 2020 and December 2020, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 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). 1. Entitlement to service connection for bilateral flat feet 2. Entitlement to service connection for bilateral plantar fasciitis The Veteran contends he is entitled to service connection for bilateral flat feet and plantar fasciitis. At his October 2019 Board hearing the Veteran testified that he had problems with his feet during service, particularly after long walks, but that he didn't seek treatment and just toughed it out. He stated that when he was diagnosed with plantar fasciitis approximately two years after service, a doctor told him that wearing boots and long marches is often the cause of flat foot in service members. Service treatment records reflect that on a June 1999 report of medical history, the Veteran denied foot trouble. On a November 2004 report of medical history for purposes of retention, the Veteran denied foot trouble. On examination he was noted to have normal arches that are asymptomatic. The record reflects the Veteran was working as a recruiter at the time. On his October 2005 separation report of medical history, the Veteran denied foot trouble. On the accompanying October 2005 separation examination, the Veteran's feet were noted to be normal on examination. His arches were specifically noted to be normal. A post-service, June 2008 private treatment record indicates that the Veteran sought treatment for right heel pain, which he reported had been present for two weeks and was worse after playing basketball the previous day. A June 2008 x-ray was read to show a chronic calcification adjacent to the distal tip of the right fibula. In July 2008 he underwent physical therapy for right plantar fasciitis. A September 2008 note by his private doctor notes a diagnosis of pes planus with plantar fasciitis. In April 2020, the Veteran was afforded a VA examination in connection with his claim. A diagnosis of pes planus and plantar fasciitis was noted. The Veteran reported that he noticed pain in his arches while wearing certain type of shoes while on recruiting duty in service. He stated that after service he played basketball and the next day could not walk due to excruciating pain. A VA opinion was obtained in June 2021. The VA examiner opined that it is less likely than not that the Veteran has a current foot disability, to include pes planus and plantar fasciitis, that onset in or is causally related to his service, to include wearing boots and marching. The examiner acknowledged the Veteran's recent lay statements with respect to the onset of his foot symptoms but noted that service treatment records and medical history reports completed by the Veteran do not reflect foot troubles in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of pes planus and plantar fasciitis, the preponderance of the evidence weighs against finding that the Veteran's condition began during service or is otherwise related to an in-service injury, event, or disease. The Board acknowledges that the Veteran is competent to report foot pain but finds his current assertions as to onset are not credible. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous records, silence in a record can sometimes be relied upon as contradictory evidence; specifically, the silence in 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. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board notes that it must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. The Board makes both findings in this case. Here, the Veteran himself denied foot trouble on medical history reports in November 2004 and October 2005 while attesting to other medical issues at the same time. Further, the July 2008 private treatment record indicating complaint of foot pain states that the onset was two weeks prior. At that time the Veteran had been separated from service for more than two years. Further examination in both November 2004 and October 2005 specifically note the Veteran to have normal arches bilaterally at those times. Based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran's plantar fasciitis or his pes planus onset in service. The Board further gives significant probative weight to the opinion of the June 2021 VA reviewer who opined that neither condition is causally related to the Veteran's service, to include wearing boots and marching in service. The Board acknowledges the Veteran's testimony that his doctor stated that wearing boots and long marches is often the cause of flat foot in service members. However, the Board finds that in the Veteran's specific case, a preponderance of the evidence is against finding that any such in-service occurrence was the cause of his specific pes planus or plantar fasciitis. The Board notes that the June 2021 VA reviewer acknowledged the Veteran's lay statements, but nonetheless opined that the evidence does not support that his foot problems, which onset after service, were caused by his service. The Board acknowledges the Veteran's own opinion that there is a relationship but finds that as a lay person the Veteran does not have the education, training, or experience to competently opine as to the etiology of his foot condition. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of medical testing. Therefore, it is outside the competence of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for bilateral plantar fasciitis and pes planus, the benefit of the doubt doctrine does not apply, and the claim must be denied. 3. Entitlement to service connection for bilateral foot discoloration The Veteran contends he is entitled to service connection for bilateral foot discoloration. In his October 2014 notice of disagreement, the Veteran stated that he contracted athlete's foot during recruit training and has had discoloration of his feet since. Service treatment records reflect that on a June 1999 report of medical history done more than a year after the Veteran's entry into service, the Veteran denied foot trouble and skin diseases. On a November 2004 report of medical history for purposes of retention, the Veteran denied foot trouble and skin diseases. On examination, his feet and skin were noted to be normal. On his October 2005 separation report of medical history, the Veteran denied foot trouble. With respect to skin diseases, he reported only razor bumps. On the accompanying October 2005 separation examination, the Veteran's feet and skin were noted to be normal on examination. No service treatment records relate to complaints regarding his feet. After service, a July 2019 VA podiatry appointment notes the Veteran not to have any pigmentary changes on his feet and his skin is otherwise noted to be normal on his feet. The Veteran was afforded a VA examination in connection with his claim in February 2020. The examiner diagnosed a disorder of pigmentation, unspecified. The Veteran reported that following recruit training he began to have discoloration of his feet. He stated that he first noticed it after the second month at training. He stated that his feet continue to peel and are excessively dry. A VA opinion was obtained in July 2020. The VA reviewer opined that the Veteran does not have a foot skin condition that onset in or was caused by his service. The reviewer noted service examinations were negative for skin conditions and no pigmentation disorder was noted until well after the Veteran's separation from service. The Board acknowledges that the Veteran is competent to report visibly apparent skin discoloration of his feet but finds his current assertions as to onset are not credible. The Board notes that the Veteran himself denied foot and skin conditions in June 1999, November 2004, and October 2005 and no skin conditions involving his feet were noted on examination in November 2004 or October 2005. The Board finds that the record being evaluated is complete in relevant part and that a foot condition would ordinarily have been recorded had it occurred. Thus, based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran has foot discoloration that onset in or is causally related to his service, the benefit of the doubt doctrine does not apply, and the claim must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.