Citation Nr: 21073895 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-14 166 DATE: December 13, 2021 ORDER 1. Entitlement to service connection for a right foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, is denied. 2. Entitlement to service connection for a left foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a left foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability, including pes planus, metatarsalgia, hammer toe, calluses, and onychomycosis, are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1974 to June 1977. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in August 2019. The Board denied the above claims in a December 2019 decision. The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a joint motion for remand (JMR) filed by the Veteran and the Secretary of VA, which vacated the Board's decision, as it related to the issues on appeal, and remanded the matter for compliance with the instructions in the JMR. In a February 2021 decision, the Board remanded the claims to obtain an addendum opinion as to whether any diagnosed foot disability was related to service. The Board finds there has been substantial compliance with the Board's directives. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Veterans are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for a left foot disability At the August 2019 Board hearing, the Veteran testified that marching during service with a heavy combat pack resulted in painful feet. He stated that he went to road march every Monday and stayed until Friday, which occurred on a weekly basis. He stated that his feet were "just messed up" as a result. The Veteran testified that he had problems with his knees and feet when he got out of the military. He stated that he was not walking properly and kept dealing with it until he could not take it anymore. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a right and left foot disability. The reasons follow. As to evidence of a current disability, a February 2012 VA examination report shows that the Veteran was diagnosed with bilateral pes planus. Additionally, the examination report shows that the Veteran was diagnosed with metatarsalgia, hammer toes, bilateral callosities, and onychomycosis. Thus, the Board finds that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records show that the Veteran was treated for bilateral foot symptoms. Just prior to entering service, a January 1974 Report of Medical History shows the Veteran reported a history of broken bones, but specifically denied foot trouble. A fracture of the right foot was also noted. Furthermore, the accompanying Report of Medical Examination apparently shows s normal clinical evaluation of the Veteran's feet. Although the Veteran previously noted that he had a fracture of the right foot, the entrance Report of Medical Examination shows that the Veteran's feet were clinically normal, which means that the Veteran's feet were presumed to be sound upon entry. On December 23, 1974, the Veteran complained of swelling to both feet for seven days, and he stated it was painful to walk. He reported that he was in the swamp area in training and that water got into his boots, which he said froze. The examiner documented the Veteran had full range of motion and a small amount of tinea pedis on the left. The assessment was tinea pedis. On December 26, 1974, the Veteran reported he had three weeks of pain in both feet and was noted to have mild pes planus. Upon physical examination, there was no swelling noted. He also had x rays to rule out a fracture, which x-rays were negative. On December 27, 1974, the Veteran was seen again. It was documented that the Veteran had been seen while on leave and was requested to return to sick call if symptoms persisted. The Veteran reported that the medication he was given had not provided any relief. The examiner wrote the Veteran was diagnosed with tinea pedis, but that none was noted at this time. The examiner also noted that the Veteran had mild pes planus. A December 28, 1974 service treatment record shows that the examiner reviewed an x-ray from the day before, which was a normal study. A February 1976 service treatment record documented the Veteran had a history of calluses on the bilateral plantar foot. It was prescribed that he trim his calluses. Thus, as the Veteran was treated for bilateral foot symptoms during service, the second element of a service-connection claim is met. However, as to evidence of a nexus between the current bilateral foot disability, variously diagnosed, and service, the Board finds that the preponderance of the evidence is against a nexus. For example, after the 1974 and 1976 complaints related to the Veteran's feet, the June 1977 Report of Medical Examination at service discharge shows that clinical evaluation of the Veteran's feet was normal. This tends to show that the symptoms he experienced in service were not ongoing. Further supporting this finding are private treatment records dated from January 2005 to March 2011, which document complaints and treatment for abdominal pain with nausea, vomiting, and diarrhea; hypertension; right groin pain; fever/body aches; sores on the back of the jaw and the base of the tongue; bilateral ear congestion; and hemorrhoids. Except for one occasion, the examiner consistently documented that the remaining review of systems was negative, which would indicate that the Veteran was not reporting bilateral foot pain and which records cover a six-year period. The only documented foot pain within these records was in November 2005, following the Veteran being burned with hot antifreeze emanating from a radiator on his right foot. The Veteran was diagnosed with second and third degree burns on his right foot. This is not the same as the foot complaints in service versus an injury involving the skin on his right foot that was sustained at that time. A January 2009 private medical record shows that the purpose of the visit was the Veteran was undergoing a physical at that time. The report shows a positive medical history of hypertension. The examiner performed a review of systems, which was documented as negative. The physical examination showed that the Veteran's extremities were clear without edema. This particular record shows that the Veteran's lower extremities were physically examined, and there were negative clinical findings. The Board finds this is affirmative evidence that the Veteran was not experiencing chronic bilateral foot pain in January 2009. The examiner documented a "Problem List," which included blood in stool, hypertension, and tobacco abuse. It did not include bilateral foot pain, and the Veteran did not report bilateral foot pain during the physical. The Veteran's report of his past medical history also did not include bilateral foot pain. Instead, it included hypertension, which is consistent with the private medical records, which show that the Veteran had hypertension as a chronic condition between 2005 and 2011. At this point, it had been more than 30 years since service discharge with reviews of systems beginning in 2005 being negative and covering a six-year period and not including bilateral foot pain. During this period of time, the Veteran presented for a "physical" in January 2009, where the purpose is to address one's overall health. In such circumstances, it is logical to assume that the Veteran would report medical concerns he was having or experiencing, as the examiner documented a problem list of blood in the stool, hypertension, and tobacco abuse. The private medical records show that the Veteran actively sought treatment for various medical symptoms he was experiencing at the time, which did not include bilateral foot pain. The Veteran was treated for a burn on his foot, and he reported symptoms related to the burn and not symptoms pertaining to his feet. The Board finds as fact that had the Veteran been experiencing chronic bilateral foot pain during this period, he would have reported it at some point, as it is clear he sought treatment for medical symptoms he was experiencing. This evidence supports the conclusion that the Veteran was not having ongoing foot pain in the years following service discharge. Then in March 2011, the Veteran complained of thick and brittle toenails and he had some hard calluses on the sole of his feet, which hurt. The Veteran indicated that he shaved those down himself. The Veteran was diagnosed with severe onychomycosis affecting the toenails. At the time of the March 2011 private medical treatment visit, the Veteran reported that his feet had been in pain for 12 months. Contemporaneous medical records are highly reliable and would establish an onset of foot pain in approximately 2010, which is 33 years after service discharge and is evidence against his allegations of chronic bilateral foot pain since service, as the Veteran reported a more recent onset of bilateral foot pain while seeking treatment. For all the above reasons, the Board finds that the Veteran's allegation of chronic bilateral foot pain in the years following service discharge is not credible. This is evidence against a nexus between the post service bilateral foot pain and service. The Veteran was afforded a VA examination in January 2012. The examiner concluded that it was as likely as not that the Veteran's right and left foot disabilities were a continuation from military service. The examiner noted that the Veteran now has evidence of an old, healed fracture of the left fifth metatarsal. Additionally, the examiner noted that the Veteran had recurrent bilateral foot pain diagnosed as metatarsalgia and mild pes planus in service. In an addendum opinion, the examiner found that the Veteran's bilateral pes planus was less likely than not permanently aggravated by military service. Within the February 2021 remand portion of the decision, the Board found the January 2012 VA examiner's opinions to be inadequate and still finds the opinions are inadequate. First, the examiner did not provide a rationale for the conclusions reached. Second, the examiner's subsequent pes planus opinion relied on a fact that was determined to be inaccurate within the JMR that the Veteran did not have pes planus at service entrance. Third, the examiner relied on the Veteran's allegations of chronic bilateral foot pain in providing the opinion, which fact the Board finds is not credible, as explained above. Accordingly, the Board affords no probative value to the February 2012 opinions. In March 2021, an addendum VA opinion was obtained. The examiner concluded that the Veteran's bilateral foot disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that there were no further complaints, diagnosis, or treatment of the Veteran's feet until September 2011, where he was diagnosed with onychomycosis and foot calluses. The examiner noted this is 34 years after separation from service. The examiner found that an intercurrent injury or disease could not be ruled out as an etiology. However, the examiner found there is no medical evidence presented to support the finding the Veteran's feet disabilities were due to his military service. The examiner concluded that due to the decades long gap in complaints, the metatarsalgia, calluses, and tinea in service were acute and resolved. The examiner wrote that if these disabilities had remained an issue, medical care would have been sought. The examiner found there was an in-service diagnosis of mild pes planus but noted that the Veteran's entrance and separation examinations marked that the Veteran had normal feet. The examiner stated that mild pes planus is subjective at best, so the examiner found the entrance and separation examinations to be more reliable. The examiner also noted that the Veteran's record showed a long history of work as a painter and welder, both of which would require long periods of time on his feet. Additionally, being a welder likely required wearing steel toed boots. Thus, the examiner found that there was no nexus between the Veteran's right and left foot disabilities and service. The examiner noted that the positive medical opinions provided in February 2012 were not made with sound medical principles. The March 2021 examiner explained that none of the Veteran's diagnosed foot disabilities within the February 2012 VA examination report were due to the old, healed fracture of the left fifth metatarsal, as this would have occurred post-service. The March 2021 examination added that the entrance examination was positive for a fracture of the right foot prior to service, and the examiner found that this would not have any impact on the currently-diagnosed foot disabilities. The Veteran's attorney argues that the March 2021 VA opinion is not adequate because the examiner failed to provide adequate medical rationale to support her conclusions, relied on a lack of contemporaneous medical evidence, and is not competent as a nurse to rebut the medical opinion of a qualified medical doctor. The Board notes it is not required that medical examinations under section 38 U.S.C. § 5103A only be conducted by physicians. Cox v. Nicholson, 20 Vet. App. 563 (2007). As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." In Cox, a nurse practitioner was found to fit squarely into the requirement of section 38 C.F.R. § 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. Cox, 20 Vet. App. at 569. Similarly, in this case, the March 2021 VA examiner was a nurse practitioner, and thus is competent to provide diagnoses, statements, or opinions. Furthermore, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). As discussed above, the Board found the February 2012 VA examiner's, a medical doctor, opinions, to be inadequate. As a result, the opinion has no probative value. The Veteran has not identified any specific incompetency of the March 2021 VA examiner and has not demonstrated, by evidence, that the Board cannot rely on the examination. His unsupported assertions do not rebut the presumption that the VA examiner is competent to provide an opinion regarding the Veteran's bilateral foot disability. Moreover, in this case, the Veteran's representative has not shown that a medical doctor's opinion is required in this case. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given a review of the evidence discussed above, the Board finds the preponderance of evidence weighs against a finding of a nexus between the Veteran's current right and left foot disability and his active service. Significantly, the Board finds the March 2021 VA examiner's negative nexus opinion adequate and affords the most probative value to the opinion, as the examiner performed a careful review of the Veteran's in-service complaints, lay history, and medical history, and concluded that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also provided a detailed rationale for the conclusion reached based upon a comparison of the Veteran's lay statements with the objective treatment records, and including consideration of submitted medical literature. The facts relied upon by the examiner are the same facts that the Board finds are accurate in that the Veteran did not continue to experience bilateral foot problems in the years following service discharge, as laid out in detail above. The Board notes it had made a mistake within the February 2021 remand in finding that the old fracture of the left foot had pre-existed service, but it was the old fracture of the right foot that had pre-existed service. The March 2021 recognized the correct facts in that the left foot fracture must have occurred after service and that the right foot fracture occurred prior to service. Therefore, the March 2021 examiner's opinion is based on an accurate factual premise. The Board finds the March 2021 VA examiner's opinion is highly probative evidence that weighs against the Veteran's claims for service connection for a bilateral foot disability. At the present time, there is no competent and probative evidence to weigh against the March 2021 opinion. Again, the 2012 opinion did not include a rationale and was based on an inaccurate factual premise, which means it lacks probative value. While the Veteran is competent to report symptoms that he has experienced in service and since service, he is not competent to directly link the current bilateral foot disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. To the extent that the Veteran alleges chronic bilateral foot pain in the years following service discharge, the Board finds such statements not credible. For all the reasons laid out above, the Board concludes that the preponderance of the evidence is against the claims for service connection for right and left foot disabilities. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims for service connection are denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.