Citation Nr: 21074172
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 16-59 740
DATE: December 14, 2021

ORDER

1. Entitlement to service connection for a right knee disability, to include osteoarthritis and as secondary to service-connected disabilities, is denied.

2. Entitlement to service connection for left foot bursitis, to include as secondary to service-connected disabilities, is denied.

3. Entitlement to service connection for left foot neuropathy, to include as secondary to service-connected disabilities, is denied.

4. Entitlement to service connection for right foot neuropathy, to include as secondary to service-connected disabilities, is denied.

5. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDINGS OF FACT

1. The Veteran's right knee disability did not have its onset during active duty, arthritis was not manifested within one year following service discharge, and the right knee disability is not otherwise related to active duty, and was not caused or shown by a medically established baseline that it was aggravated by service-connected disability or disabilities.

2. The Veteran's left foot bursitis did not have its onset during active duty service, is not otherwise related to active duty service, and was not caused or shown by a medically established baseline that it was aggravated by service-connected disability or disabilities.

3. The Veteran's neuropathy in the left foot did not have its onset in service, was not manifested to a compensable degree within one year of separation from service, is not otherwise related to service, and was not caused or shown by a medically established baseline that it was aggravated by service-connected disability or disabilities.

4. The Veteran's neuropathy in the right foot did not have its onset in service, was not manifested to a compensable degree within one year of separation from service, is not otherwise related to service, and was not caused or shown by a medically established baseline that it was aggravated by service-connected disability or disabilities.

5. The Veteran has not been precluded from securing or following a substantially gainful occupation due to the service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right knee disability, to include as secondary to service-connected disability or disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

2. The criteria for service connection for left foot bursitis, to include as secondary to service-connected disability or disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for service connection for left foot neuropathy, to include as secondary to service-connected disability or disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

4. The criteria for service connection for right foot neuropathy, to include as secondary to service-connected disability or disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

5. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1960 to December 1962.

In November 2017 and most recently in July 2020, the Board remanded the service connection claims for additional development. There was substantial compliance with the remand directives to decide the claims on appeal. Stegall v. West, 11 Vet. App. 268 (1998).

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. Service connection may 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).

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for a right knee disability, to include osteoarthritis and as secondary to service-connected disabilities.

The Veteran contends that service connection is warranted for a right knee disability because it was incurred in service or otherwise a result of service, including "squat jumps" that were a daily routine. See April 2014 statement. The Veteran also asserts that his right knee disability was caused or aggravated by the service-connected bilateral foot disability. The Veteran is currently in receipt of service-connection for a bilateral foot disability; "bilateral pes planus/ plantar fasciitis/ traumatic arthritis/ mid-foot deformity, bilateral, to include Morton's neuroma, right."

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for a right knee disability is warranted. The reasons follow.

The Veteran has a current right knee disability. In a June 2016 VA examination report, the examiner entered a diagnosis of knee joint osteoarthritis of the right side. Accordingly, the first element of service connection, evidence of a current disability, is met.

As to evidence of an in-service disease or injury, the Veteran reported that he performed squat jumps daily in service. The Veteran also stated that he did a lot of long marches with packs on during the military while in Germany. The Board finds that the Veteran is competent to report his duties while in service, however, the Veteran's service treatment records are silent for a diagnosis, symptoms, or treatment of the right knee. The fact that the Veteran performed squat jumps or long marches do not document a disease or injury but rather only body movements/ positions, which is not the same as a disease or injury.

Service treatment records do not document complaints, symptoms, diagnosis, or treatment for a right knee disability, specifically the Veteran's November 1962 Report of Medical Examination for purposes of separation reflects a normal clinical evaluation of the Veteran's "lower extremities." Furthermore, the Veteran was assigned "1" ratings assessing the lower extremity under the PULHES profile system, indicating that the Veteran's upper and lower extremities were in a high level of fitness. See Odiorne, 3 Vet. App. at 457. In the accompanying November 1962 Report of Medical History, the Veteran reported a positive history of "cramps in your legs" but denied "arthritis or rheumatism;" "bone, joint, or other deformity;" "lameness;" and "'trick' or locked knee." Further, the Veteran checked "no" when asked if he "ever had any illness or injury other than those already noted." The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. Thus, the Board finds that the preponderance of the evidence is against an in-service occurrence of a disease or injury to the right knee.

Accordingly, while the Board concedes that the Veteran underwent physical activities during service, where he may have been in uncomfortable body positions, including his feet, performing physical activities during training and operations, this does not equate to a disease or injury in service. Rather, the Veteran has not reported a particular incident that caused his current right knee disability and close to separation, he affirmatively reported occasional leg cramps but did not mention issues with the right knee. The Veteran reported during the June 2016 VA examination that he did not recall an injury to the knees and that he started to have knee problems about 8 to 10 years prior, or around 2008, which would not be indicative of a disease or injury in service. Thus, the preponderance of the evidence is against a finding of complaints or symptoms related to the right knee, during service, and the in-service disease or injury element is not met.

Additionally, there is no competent evidence that arthritis manifested within one year from his December 1962 separation from service. A December 2013 x-ray report of the right knee shows an impression of degenerative changes in the lateral compartment of the knee joint and patellofemoral joint. In a March 2013 knees and lower leg Disability Benefits Questionnaire (DBQ) completed by a private provider, osteoarthritis of the bilateral knees was noted with a date of diagnosis of "2013  2014." The history was described as "several year history of pain" of the left and right knees. This is consistent with the Veteran's report during the June 2016 VA examination that he started to have knee problems about 8 to 10 years prior and an onset of around 2008. The June 2016 VA examiner indicated a 2008 date of diagnosis for the Veteran's right knee joint osteoarthritis. The July 2019 VA examiner noted a 2005 diagnosis of bilateral knee degenerative arthritis, which appears to be based on the Veteran's reported history of gradual presentation of knee pain which he reported began in 2005.

Arthritis is diagnosed primarily on clinical findings, such as x-rays or specialized testing, such as MRI, which the Veteran is not competent to conduct or interpret. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis established by x-ray findings); Diagnostic Code 5010 (traumatic arthritis established by x-ray findings); Diagnostic Code 5002 (rheumatoid arthritis must be "objectively confirmed by findings" that show limitation of motion). Cf. 38 C.F.R. § 4.66 (indicating the usual way to diagnose arthritis is by x-ray, which is also required to see arthritic changes). Arthritis of the right knee was not confirmed until x-rays were performed in December 2013, as discussed above. The preponderance of the evidence is against a finding that arthritis manifested within one year from the Veteran's December 1962 separation from service. Even assuming a 2005 diagnosis of arthritis noted by the July 2019 VA examiner is valid, it would still be over 40 years after service. Thus, a presumption of service connection based on the chronicity of arthritis is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a).

As to evidence of a nexus between the current disability and service, the Board finds the preponderance of the evidence is against a finding to establish the required nexus between the disability and the Veteran's military service, to include as secondary to service-connected disability or disabilities. The Veteran proffered an opinion from private podiatrist, Dr. Matthew Parmenter, dated April 2014, which indicates that the Veteran brought to his attention that military squat jumps were a daily exercise routine that may have contributed to his legs and knee injuries and were later banned by the military. Dr. Parmenter opined that after reviewing the Veteran's military records, it is his opinion that it is more likely than not that the Veteran's current medical issues with his lower back, legs, varicose veins, knees and feet injures are related to his flat feet. The Board notes that the private podiatrist initially indicated that his opinion was based on the Veteran's report. Further, while the physician indicated that he reviewed the Veteran's military records, he did not include a supporting rationale for his opinion that the Veteran's knee injuries were related to his flat feet, thus, the Board finds that the probative value of this opinion is diminished. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Subsequently, in a November 2016 letter, Dr. Parmenter stated that the Veteran had been diagnosed with having pronation syndrome and an inward bowing of both feet. He explained that inward bowing exerts pressure on the lower leg bone, which in turn, causes improper alignment of the knee joints and the Q ankle increases with pronated gait causing patella femoral joint syndrome. He added that the knee is designed to absorb a certain amount of weight and when energy from the weight rises to a higher level over a long period of time the knee joints are subjected to numerous injuries such as osteoarthritis. Dr. Parmenter stated that it needs to be considered that the road marches on concrete and asphalt were performed for a three-year period, plus training exercises with a 35 pound field pack during his tour of duty as another big risk factor to the Veteran's injuries.

The Veteran has proffered several articles in support of his claim, including: (1) Rigors of War Leave Troops Battling Arthritis at a Young Age; (2) Flat Feet Are Associated with Knee Pain and Cartilage Damage in Older Adults; and (3) Osteoarthritis Incidence Significantly Higher Among U.S. Military Personnel Compared to General Population. 

The first article suggests a correlation between military service and osteoarthritis, however, it focuses on troops that were diagnosed with osteoarthritis at a young age, which is not the case with this Veteran that was diagnosed in 2013, when he was in his 70's. For example, the article mentions a soldier that came back from a one-year deployment with a herniated disk and degenerative arthritis in the spine at 29 years old. It states that a study from the journal of Arthritis and Rheumatism found that that servicemembers are developing degenerative arthritis disease at much higher rates and at younger ages than civilians and that post-traumatic arthritis is also one of the leading reasons why soldiers injured in combat become medically separated from the military. A study from Dr. Cameron was referenced that states:

"Osteoarthritis rates were 26 percent higher in servicemembers age 20 to 24 than in the general population. Troops over the age of 40 were more than twice as likely to develop the disease as civilians." 

Here, the Veteran was not diagnosed with arthritis at a young age or separated from service due to arthritis. As mentioned above, the Veteran's right knee arthritis was diagnosed no earlier than 40 years post-separation from service. 

The article, Flat Feet Are Associated with Knee Pain and Cartilage Damage in Older Adults, indicates that evidence suggests that many of the characteristic features of knee osteoarthritis are related to mechanical loading. However, within the article it is noted that despite its central role in lower extremity biomechanics, little is known about the consequences of abnormal foot morphology (planus or cavus) for the risk of knee tissue damage of frequent knee symptoms. The last article suggests significantly higher osteoarthritis incidence in the military population. It was noted that military servicemembers are at a higher risk for traumatic joint injuries and prior studies have shown joint trauma to be a risk factor for osteoarthritis, however, "further research is needed to determine the incidence of post-traumatic osteoarthritis and explore the risk factors associated with this condition among military personnel."

While the articles may suggest an association of arthritis and military personnel and knee arthritis and flat feet, these articles do not address the Veteran's specific case and diagnosed disabilities. Moreover, the articles indicate that additional studies were needed for more definitive findings. Therefore, the Board finds that the articles are of diminished probative value in support of the Veteran's claim.

The Veteran was afforded a VA examination in October 2014. The examiner noted the diagnosis of osteoarthritis rendered by Dr. Parmenter at the time of the March 2014 DBQ examination. The examiner provided an opinion that the claimed right knee osteoarthritis was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. She provided the rationale that while each individual's history may vary, the usual and customary factors that are present and predispose an individual to osteoarthritis are genetics and age. The examiner added that while an individual may alter normal gait due to pain in an extremity, it is more likely than not that the usual and customary factors as well as his obesity, with a body mass index (BMI) of 35.58, thus class 2 obesity, have promoted osteoarthritis in his knee. She concluded that the chronic daily, unrelenting, additional load-bearing stress secondary to obesity far exceeds the other potential stresses.

In a June 2016 addendum VA opinion, the examiner opined that the claimed right knee osteoarthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He indicated that he reviewed the Veteran's service treatment records and noted that evidence of treatment for the claimed condition or any visits related to the condition did not exist. He added that the symptoms developed years later and symptoms and findings are consistent with aging process and repeated stressors to knee over time, he found that the Veteran's right knee arthritis is less likely than not incurred in or caused by the daily squat jumps as part of his military service training.

In August 2019, a VA examiner also opined that the Veteran's claimed right knee osteoarthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the Veteran's right knee osteoarthritis was less likely than not proximately due to or the result of the Veteran's service-connected knee disability. She provided the rationale that according to medical literature, the most common cause of osteoarthritis of the knee is age.

The examiner was unable to determine a baseline level of severity of the claimed right knee osteoarthritis based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected disability because the examiner found the medical evidence was not sufficient to support a determination of the baseline level of severity. Regardless of an established baseline, the examiner found that the Veteran's claimed right knee osteoarthritis was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral foot disability. She indicated that it was not possible to determine the natural progression of the Veteran's right knee osteoarthritis, therefore, a medical opinion was not rendered.

In an October 2020 VA opinion, the examiner opined that the Veteran's claimed right knee osteoarthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He provided the rationale that a review of the medical record and service treatment record show no evidence of the diagnosis, treatment, or symptoms suggestive of right knee osteoarthritis while on active duty or within one year of separation from military service. The examiner noted the specific diagnosis in detail and indicated that this was in 2015, 53 years after separation. The examiner stated that the U.S. Army has developed a comprehensive injury prevention program encompassing surveillance, research, program implementation and monitoring. The examiner noted the military has done extensive research to include the kinetics involved in training programs focused on the prevention of injuries and strengthening, while acute injuries occur, there is no evidence of late onset conditions associated with military training programs.

The examiner opined that the claimed right knee osteoarthritis, was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected bilateral foot disability. The examiner wrote he was unable to determine a baseline level of severity of the claimed right knee osteoarthritis based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected disability because the medical evidence was not sufficient to support a determination of the baseline level of severity. Regardless of an established baseline, the examiner found that the Veteran's claimed right knee osteoarthritis was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral foot disability.

The examiner explained that there is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics, November 2015) to suggest that an injury to one joint would have any significant impact or permanent aggravation on another or opposite uninjured joint or limb unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait.

The examiner added that the use of associated body components as a result of avoiding use of a painful or limited component is a natural compensation. He explained that whether the associated body part is capable of the increased load is property of the associated part and it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another or cause damage to it. The examiner stated that the condition of the right knee is due to something intrinsic to the right knee and not the service-connected foot conditions referencing Oxford's Textbook on Orthopedics and Trauma.

The Board has considered the evidence submitted by the Veteran and his representative, including medical opinions, medical articles, and lay statements; however, it find that the most probative evidence of record are the VA examination reports and medical opinions discussed. While the private opinions from Dr. Parmenter and articles show the possibility that the Veteran's right knee arthritis was caused by or aggravated by the service-connected bilateral foot disability, including pes planus, the VA examiners have addressed such possibility considering the medical evidence specific to the Veteran. The objective medical records do not show a significant shortening of the limbs nor that an abnormal or antalgic gait has been present for an extended period of time. 

In the March 2014 knee DBQ proffered by the Veteran, the medical professional indicated that the Veteran had pain with prolonged standing or walking; however, the medical professional also noted that the Veteran had no functional loss for the right lower extremity, and did not have any additional conditions under section XI, which included a leg length discrepancy. In other words, the examiner was not documenting that the Veteran had a leg length discrepancy. VA medical records noted the Veteran had a normal or stable gait in February 2011, December 2012, February 2014, and March 2015. A May 2016 VA medical record shows that the Veteran ambulated without an assistive device, had no loss of balance, and his medial longitudinal foot arches were maintained. The June 2016 VA examination report for peripheral nerves reflects that the examiner described the Veteran's gait as normal. The Veteran was noted to have an unstable gait in a January 2018 VA medical record but had a steady gait in October 2019. A May 2021 VA medical record reflects that the Veteran's gait had a decreased cadence and reduced arm swing, but no loss of balance was noted, the Veteran was able to talk while walking without loss of balance, and no antalgic gait was observed. This supports the medical opinions of the VA examiners, as a showing of an abnormal gait significant enough to affect the non-service-connected right knee has not been shown by the evidence. While the private opinions from Dr. Parmenter show the possibility that the Veteran's right knee arthritis was caused by or aggravated by the service-connected bilateral foot disability, including pes planus, the VA examiners have addressed such possibility and found that the Veteran's other risk factors outweigh the protentional stresses caused from bilateral foot disability. 

In February 2017 correspondence, the Veteran stated that while VA examiners have stated risk factors of his osteoarthritis in his knees included obesity, age, and genetics, his brother, whom has all the same risk factors does not have osteoarthritis. The Veteran claimed to have been class two obesity for only a few years and that his family doctor stated his weight gain was due to inactivity which is caused by his injuries. A review of the Veteran's VA medical records reflects that the Veteran had weighed between 214 to 219 pounds from November 2005 and December 2008. In December 2006, the medical professional noted that the Veteran was "slightly overweight" at 216 pounds. He was approximately 235 to 226 pounds from December 2009 to March 2017. The Veteran's weight fluctuated between 208 and 235 pounds from November 2018 to December 2019. Thus, the objective evidence of record does not support his claim of the weight gain and obesity in the preceding few years.

The Veteran is competent to report his symptoms; however, to the extent he is alleging a nexus through his own lay assertions that his right knee disability is caused by or related to his military service, to include as secondary to service-connected disabilities, he is not a medical professional, and he is not competent to offer opinions as to the etiology of the right knee disability, to include a comparison of his brother's risk factors and knee condition. A diagnosis of a knee disability and its causes requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology.

Therefore, given the reasons above, the Board finds that the most probative evidence of record are the opinions of the VA examiners. The VA examiners' opinions provide competent and probative evidence that weigh against the Veteran's claim because the VA examiners collectively reviewed the claims file, interviewed the Veteran, performed appropriate examinations, and provided medical opinions supported by well-reasoned rationale with citations to medical literature. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012).

The Board notes that secondary service connection on the basis of aggravation may be granted only when there is an increase in severity of the nonservice-connected beyond a medically-established baseline due to the service-connected disability. The regulation explicitly lays out that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his right knee disability; the Board finds that his right knee disability was not incurred in service and it is not otherwise related to active service. The Board has considered evidence that showed that the Veteran did not seek medical treatment for a right knee disability until over five decades after service. The most probative evidence on medical etiology is against his claim. The Board also finds that the preponderance of the evidence is against a finding that the Veteran's right knee disability is caused by the service-connected pes planus. Without establishing a baseline severity, his right knee disability is not aggravated by the Veteran's service-connected disabilities, as the Veteran has not offered competent and probative medical evidence in support of his claim. See 38 U.S.C. § 5107(a) Accordingly, service connection for a right knee disability is not warranted.

For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claim of service connection for a right knee disability, to include osteoarthritis and as secondary to service-connected disability or disabilities, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to service connection for left foot bursitis, to include as secondary to service-connected disabilities.

The Veteran asserts that service connection for left foot bursitis is warranted because it was incurred in or otherwise a result of service, including "squat jumps" that were a daily routine. See April 2014 statement. Alternatively, the Veteran also asserts that left foot bursitis was caused or aggravated by the service-connected bilateral foot disability. The Veteran is currently in receipt of service connection for a bilateral foot disability; "bilateral pes planus/ plantar fasciitis/ traumatic arthritis/ mid-foot deformity, bilateral, to include Morton's neuroma, right," the claim is limited to left foot bursitis.

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for left foot bursitis is warranted. The reasons follow.

As to evidence of a current disability, the Veteran has a left foot bursitis disability. April 2013 VA treatment records document the Veteran reporting a knot on his left foot. Private treatment records from July 2013 reflect that the Veteran was reporting pain at the "bursitis point" and that he had a reactive bursitis of the left 2nd metatarsophalangeal joint. An October 2013 VA examination report includes the Veteran's report that he had a new onset of left foot pain approximately four to five months ago and a bursitis at the base of the second and third toes on the left foot.

Following VA examination in July 2019, the examiner opined that the Veteran did not have a diagnosis of left foot bursitis. Given conflicting evidence that suggested a diagnosis, including as referenced above, in July 2020, the Board remanded the claim to address the medical history and provide an adequate opinion. A VA opinion in October 2020 and addendum clarification opinion in December 2020 referenced a diagnosis of left foot bursitis. Accordingly, affording the Veteran the benefit of the doubt, the Board finds there is evidence of a current disability.

As to evidence of an in-service disease or injury, the Veteran reported that he performed squat jumps daily in service. The Board finds that the Veteran is competent to report his duties while in service, however, the Veteran's service treatment records are silent for a diagnosis, symptoms, or treatment of the left foot. The fact that the Veteran performed squat jumps do not document a disease or injury but rather only body movements / positions.

Service treatment records do not document complaints, symptoms, diagnosis, or treatment for a left foot disability, other than pes planus, which is reflected on the Veteran's November 1962 Report of Medical Examination for purposes of separation as "flatfoot, bilateral." In the accompanying November 1962 Report of Medical History, the Veteran reported a positive history of "cramps in your legs" but denied "arthritis or rheumatism;" "bone, joint, or other deformity;" "lameness;" "loss of arm, leg, finger or toe;" and "foot trouble." Further, the Veteran checked "no" when asked if he "ever had any illness or injury other than those already noted." The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. Thus, the Board finds that the preponderance of the evidence is against an in-service occurrence or an event relating to the left foot, other than pes planus.

Accordingly, while the Board concedes that the Veteran underwent physical activities during service, where he may have been in uncomfortable body positions, including his feet, performing physical activities during training and operations, this does not equate to a disease or injury in service. Rather, the Veteran has not reported a particular incident that caused his current left foot bursitis and in close proximity to service separation, he affirmatively reported occasional leg cramps but did not mention left foot pain. Thus, the preponderance of the evidence is against a finding of complaints or symptoms related to the left foot, other than pes planus, during service, and the in-service disease or injury element is not met.

The Board also finds the preponderance of the evidence is against a showing of a nexus between the Veteran's current left foot bursitis disability and service and as secondary to service-connected disabilities. In October 2013, the Veteran reported to the VA examiner that he had a new onset of left foot pain approximately four to five months prior and a bursitis at the base of the second and third toes on the left foot. The examiner opined that based on the Veteran's report, he had two conditions that are unrelated to his documented end-of-service physical that revealed bilateral pes planus. She added that a careful review of the literature revealed no correlation between pes planus and Morton's neuroma and bursitis.

The Veteran proffered an opinion from private podiatrist, Dr. Parmenter, dated April 2014, who wrote that the Veteran brought to his attention that military squat jumps were a daily exercise routine that may have contributed to his legs and knee injuries and were later banned by the military. Dr. Parmenter opined that after reviewing the Veteran's military records, it is his opinion that it is more likely than not that his current medical issues with his lower back, legs, varicose veins, knees and feet injures are related to his flat feet. The Board notes that Dr. Parmenter initially indicated that his opinion was based on the Veteran's report and addressed only the leg and knee injuries. Further, while the physician indicated that he reviewed the Veteran's military records, he did not include a supporting rationale for his opinion that the Veteran's feet injuries were related to his flat feet, thus, the Board finds that the probative value of this opinion is diminished. See Nieves-Rodriguez, 22 Vet. App. 295.

Subsequently, in a November 2016 letter, Dr. Parmenter wrote that having flat feet for the past 54 years is probably the biggest risk factor that brought about the Veteran's bilateral injuries to his feet. He explained that for many years, the Veteran's fallen arches have not been able to absorb the energy from the impact of weight and therefore could not be distributed to the plantar surface. He explained that the plantar surface is an area that protects the metatarsal joints and also other parts of the foot. He added that the Veteran's x-rays demonstrated that he has metatarsalgia and deformities of the metatarsal joints and when these joints are damaged, other injuries can occur, which could include the bursitis in his left foot and a Morton's Neuroma in the right foot. The private physician stated that these conditions of the Veteran's feet can make it possible for other injuries to occur just by normal everyday activities, such as jumping off of or stepping on hard surfaces, such as concrete and stones, or bending the foot to reach up, etc. could be factors. Dr. Parmenter stated that his opinion is that the evidence he submitted should show the chain of events linking bursitis to his flat feet.

In December 2016, the Veteran also submitted an article, Bursitis (Infracalcaneal), from a retailer of toe-spacing products. The Veteran circled the section "Cause," which noted that bursas can form and become inflamed throughout the body, which is typically due to local irritation, trauma, friction, and prolonged repetitive movements can cause pain.

In July 2019, a VA examiner stated that the Veteran did not have a diagnosis of left foot bursitis, therefore, did not provide medical opinions regarding the cause or etiology of the Veteran's left foot bursitis.

In October 2020, an examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or illness. The examiner wrote that he was unable to determine a baseline level of severity of the left foot bursitis based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected disability. Regardless of an established baseline, the examiner found that the claimed left foot bursitis was not at least as likely as not aggravated beyond its natural progression by the service-connected disability. The examiner provided the rationale that a review of the medical record showed no evidence of the diagnosis, treatment, or symptoms suggestive of left foot bursitis while on active duty or within one year of separation from military service. He added that the Veteran was diagnosed with bursitis of the left 2nd metatarsophalangeal joint in 2013 (51 years after separation) due to a jumping injury. The examiner stated that the U.S. Army has developed a comprehensive injury prevention program encompassing surveillance, research, program implementation and monitoring. The military has done extensive research to include the kinetics involved in training programs focused on the prevention of injuries and strengthening, while acute injuries occur, there is no evidence of late onset conditions associated with military training programs.

In a clarification opinion provided in December 2020, the examiner stated that the Veteran's claims file was reviewed. He noted that Dr. Parmenter diagnosed the Veteran with a left foot capsulitis and bursitis following an acute injury in July 2013. The diagnoses were unilateral, Morton's Neuroma of the right foot 3rd web area and a reactive bursitis of the left foot with capsulitis and neuritis following, "The patient jumped off and sustained the injury to the area." The examiner stated the Veteran injured his left foot in 2013 and the capsulitis/bursitis was attributed to that injury by his private podiatrist and not service-connected conditions of bilateral pes planus / plantar fascitis / traumatic arthritis / mid-foot deformity, to include Morton's neuroma of the right foot. The examiner stated that it was impossible to determine if the left foot bursitis was permanently aggravated by the Veteran's service-connected disabilities due to the complex biomechanical interplay of the foot physiology, and any given complaint or symptom cannot be specifically attributed to any single pathology.

The Board has considered the evidence submitted by the Veteran and his representative, including medical opinions, articles, and lay statements; however, the Board finds that the most probative evidence of record are the VA examination reports and medical opinions discussed.

The opinions provided by Dr. Parmenter offer minimal support to the Veteran's claim. The repeated use of equivocal language such as the words "may," "probably," "could," "can make it possible" throughout Dr. Parmenter's medical discussion cause the Board to find such conclusions made as to the effect of the Veteran's fallen arches on his left foot bursitis to be speculative. See generally Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009). Moreover, the December 2020 examiner directly referenced Dr. Parmenter's July 2013 diagnosis of left foot capsulitis and bursitis following an acute injury, which Dr. Parmenter at the time attributed to a "jumped off" injury. Dr. Parmenter did not attribute the cause of the Veteran's claimed left foot bursitis at time of diagnosis to the service-connected bilateral pes planus or indicate that it was a contributing factor for his injury. Mere possibility of such a relationship is insufficient to warrant a grant of the claim as reasonable doubt does not include resort to speculation or remote possibility. See 38 C.F.R. § 3.102.

The Veteran and his representative have attempted to establish a nexus through their own lay assertions that the Veteran's left foot bursitis disability is caused by or related to his military service, to include as secondary to service-connected disabilities, however, as neither the Veteran nor his representative are medical professionals, they are not competent to offer opinions as to the etiology of the Veteran's left foot bursitis. A diagnosis of a foot bursitis disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology.

Therefore, given the reasons above, the Board finds that the most probative evidence of record are the opinions of the VA examiners. The examiners' opinions provide competent and probative evidence that weigh against the Veteran's claim because the VA examiners collectively reviewed the claims file, interviewed the Veteran, performed appropriate examinations, and provided medical opinions supported by well-reasoned rationale. Monzingo, 26 Vet. App. at 105-106.

Secondary service connection on the basis of aggravation may be granted only when there is an increase in severity of the nonservice-connected beyond a medically established baseline due to the service-connected disability. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his left foot bursitis disability; the Board finds that his left foot bursitis disability was not incurred in service and it is not otherwise related to active service. The Board has considered evidence that showed that the Veteran did not seek medical treatment for left foot bursitis until over 51 years after service. The most probative evidence on medical etiology is against his claim. The Board also finds that the preponderance of the evidence is against a finding that the Veteran's left foot bursitis is caused by the service-connected pes planus. Without establishing a baseline severity, the Veteran's left foot bursitis is not aggravated by the service-connected disabilities, as the Veteran has not offered competent and probative medical evidence in support of his claim. See 38 U.S.C. § 5107(a) Accordingly, service connection for left foot bursitis is not warranted.

For all the reasons laid out above, the preponderance of the evidence is against the claim of service connection for a left foot bursitis, to include as secondary to service-connected disability or disabilities, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

3. & 4. Entitlement to service connection for left foot and right foot neuropathy, to include as secondary to service-connected disabilities.

The Veteran asserts that service connection for bilateral foot neuropathy is warranted because it was incurred in or otherwise a result of service, including "squat jumps" that were a daily routine. See April 2014 statement. Alternatively, the Veteran also asserts that bilateral foot neuropathy was caused by or aggravated by the service-connected bilateral foot disability, which is characterized as: "bilateral pes planus/ plantar fasciitis/ traumatic arthritis/ mid-foot deformity, bilateral, to include Morton's neuroma, right." As the evidence and legal analysis for the claimed right and left foot neuropathy are largely similar, they shall be discussed jointly as peripheral neuropathy.

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for bilateral foot peripheral neuropathy is warranted. The reasons follow.

As to evidence of a current disability, following VA examination in July 2019, the examiner documented a diagnosis of peripheral neuropathy of the bilateral foot. The evidence of record includes conflicting evidence of whether the Veteran has a current diagnosis of peripheral neuropathy, which will be discussed in further detail below. However, a claim for service connection may encompass claims for any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary of VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, affording the Veteran the benefit of the doubt, the Board finds there is evidence of a current disability, and the facts establish that the first element of a service-connection claim is met.

As to evidence of an in-service disease or injury, the preponderance of the evidence is against a finding of a disease or injury in service. Service treatment records do not document complaints, symptoms, diagnosis, or treatment for peripheral neuropathy. Service treatment records show that the Veteran was found to have clinically normal evaluations of his "lower extremities" and "neurologic" system in the November 1962 Report of Medical Examination close to separation. While an abnormal clinical evaluation of the "feet" is noted, it is described as "pes planus" and "flatfoot, bilateral," with no reference to neuropathy. In the accompanying November 1962 Report of Medical History, the Veteran denied a history of "lameness," "paralysis;" "foot trouble," and "neuritis," but reported a positive history of "cramp in your legs." This tends to show that he was not experiencing peripheral neuropathy of the feet in service. Further, the Veteran checked "no" when asked if he "ever had any illness or injury other than those already noted." The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. Accordingly, the preponderance of the evidence is against a finding of complaints or symptoms related to peripheral neuropathy of the feet during service, and the in-service disease or injury element is not met.

The preponderance of the evidence is also against a nexus between the current disability and service. For example, the Veteran was first treated for neuropathy in the lower extremities around October 2012. The private treatment record reflects that the Veteran was a new patient of Dr. Parmenter and reported that when he came out of service in Germany, he wore a size 3E with his feet and had no problems at that time. He also reported that he had a full backpack on the entire time and walked 6,000 miles while in Germany. The Veteran indicated that over the last several years, he had started to have more trouble with his feet with pain and swelling. The system review was "unremarkable," and Dr. Parmenter noted that the Veteran "show[ed] signs of neuropathy" and reported that his feet would "become painful to walk on." Subsequent records in November 2012 noted that the Veteran's electromyography (EMG) and nerve conduction study (NCS) were normal. "Neuropathy type pain" was noted in both feet in December 2012. X-ray of the right foot showed an exostosis medial cuneiform and the Veteran had o complaint there but instead his complaint was the neuroma in the right 3rd webspace and bunionette.

A July 2013 private medical record shows that the Veteran had pain in his left foot for two months. A clinical examination revealed a reactive bursitis of the left 2nd metatarsophalangeal joint that was quite painful and that the Veteran had capsulitis and neuritis. Dr. Parmenter noted that the Veteran "jumped off and sustained the injury to the area." A neuroma of the right food in the 3rd web area that was "quite painful" was also noted. Thus, the first complaint of neuropathy symptoms in the feet is more than 50 years following service discharge and tends to establish that peripheral neuropathy did not have its onset in service or within one year of discharge.

The Veteran proffered an opinion from private physician, Dr. Parmenter, dated April 2014, which indicates that the Veteran brought to his attention that military squat jumps were a daily exercise routine that may have contributed to his legs and knee injuries and were later banned by the military. Dr. Parmenter opined that after reviewing the Veteran's military records, it is his opinion that it is more likely than not that the Veteran's current medical issues with his lower back, legs, varicose veins, knees and feet injures are related to his flat feet. The podiatrist initially indicated that his opinion was based on the Veteran's report and addressed the leg and knee injuries only. Further, while the podiatrist indicated that he reviewed the Veteran's military records, he did not include a supporting rationale for his opinion that the Veteran's feet injuries were related to his flat feet, thus, the Board finds that the probative value of this opinion is diminished. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Subsequently, in a November 2016 letter, Dr. Parmenter stated that having flat feet for the past 54 years is probably the biggest risk factor that brought about the Veteran's bilateral injuries to his feet. He explained that for many years, the Veteran's fallen arches have not been able to absorb the energy from the impact of weight and therefore could not be distributed to the plantar surface. He explained that the plantar surface is an area that protects the metatarsal joints and also other parts of the foot. He added that the Veteran's x-rays demonstrated that he has metatarsalgia and deformities of the metatarsal joints and when these joints are damaged, other injuries can occur, which could include the bursitis in his left foot and a Morton's Neuroma in the right foot. The private physician stated that these conditions of the Veteran's feet can make it possible for other injuries to occur just by normal everyday activities for example jumping off of or stepping on hard surfaces, such as concrete and stones, or bending the foot to reach up, etc. could be factors. Dr. Parmenter stated that his opinion is that the evidence he submitted should show the chain of events linking bursitis to his flat feet. In the same letter, Dr. Parmenter addressed "evidence showing the relationship between osteoarthritis and pes planus" and "evidence showing the relationship between varicose veins and pes planus." Thus, while Dr. Parmenter provided evidence of an association of the Veteran's bilateral foot injuries and the service-connected bilateral pes planus, he did not address the claimed neuropathy.

Nonetheless, the Board finds that the opinions provided by Dr. Parmenter offer minimal support to the Veteran's claims. The repeated use of equivocal language such as the words "may," "probably," "could," "can make it possible" throughout Dr. Parmenter's medical discussion cause the Board to find such conclusions made as to the effect of the Veteran's fallen arches on his claimed foot disabilities to be speculative. See generally Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009).

Following examination in October 2014, a VA examiner noted diagnoses of bilateral flat foot, Morton's neuroma, bursitis, and capsulitis of the right foot. The examiner addressed whether the Veteran had clinical findings of bilateral neuropathy of his feet. The examiner found that the Veteran had a negative EMG; however, the examiner noted bilateral neuropathy, especially small fiber neuropathy, can occur from a variety of conditions including, but not limited to, vitamin deficiencies, changes as part of normal aging, and transient elevation in blood sugar. She added, that if the Veteran had a distortion or alteration in his anatomy or gait to the degree that resulted in a specific nerve damage, such type of neuropathy would have been present on EMG, which it was not.

A VA examiner in June 2016 opined that the claimed neuropathy was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that the Veteran's service treatment records were reviewed, and there was no evidence of treatment for the claimed condition or any visits related to the condition. He stated that symptoms developed later and findings were consistent with neuropathy given by Dr. Parmenter; however, the examiner noted objective evidence of the disease by EMG/NCV did not exist, and that the Veteran had other foot conditions that would overlap symptoms to a substantial degree.

In an August 2019 VA opinion, the examiner opined that the Veteran's bilateral foot neuropathy was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition bilateral foot disability. She provided the rationale that according to the Veteran's past medical records, he began to experience numbness/tingling to his bilateral foot in 2013, which is approximately 50 years after service discharge in 1962, which would seem to indicate that his military service was not the cause of the peripheral neuropathy of the bilateral foot. The examiner was unable to determine a baseline level of severity of the claimed bilateral neuropathy of the foot based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected disability because the medical evidence was insufficient to support a determination of the baseline level of severity. Regardless of an established baseline, the examiner found that the Veteran's claimed bilateral neuropathy of the feet was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral foot disability. She indicated that it was not possible to determine the natural progression of the Veteran's bilateral foot peripheral neuropathy, therefore, a medical opinion was not rendered.

In an October 2020 opinion, a VA examiner opined that the Veteran's claimed neuropathy was less likely than not (less than 50 percent probability) caused by the claimed in-service injury, event, or illness; or proximately due to the Veteran's service-connected bilateral foot disability. The examiner provided the rationale that a review of the medical record and service treatment records showed no evidence of the diagnosis, treatment, or symptoms suggestive of left foot neuropathy while on active duty or within one year of separation from military service. The examiner stated that the Veteran was diagnosed with left 2nd metatarsophalangeal joint neuritis in 2013 (51 years after separation) due to a jumping injury.

The examiner explained the difference between neuritis and neuropathy, although acknowledged the terms are sometimes used interchangeably, the latter is an often-painful condition that is associated generally with nerve damage, dysfunction, or degeneration rather than with inflammation alone. He added that "neuritis" describes an inflammation of a nerve anywhere in the body. It can be caused by a variety of factors but in the end, the nerve becomes inflamed or irritated, which can cause an over-sensitive area in the body.

The examiner stated that the U.S. Army has developed a comprehensive injury prevention program encompassing surveillance, research, program implementation and monitoring. The military has done extensive research to include the kinetics involved in training programs focused on the prevention of injuries and strengthening, while acute injuries occur, there is no evidence of late onset conditions associated with military training programs.

The examiner also found that there was no evidence that the claimed bilateral neuropathy was caused or aggravated beyond its natural progression by bilateral pes planus/ plantar fasciitis/ traumatic arthritis/ mid-foot deformity, to include Morton's neuroma of the right foot. The examiner explained that Morton's neuroma is a benign but painful condition that affects the ball of the foot and also called an intermetatarsal neuroma because it is located in the ball of the foot between the metatarsal bones. He added that it happens when the tissue around a nerve that leads to a toe thickens from irritation or compression and reiterated that neuropathy is loss of sensation, while neuritis is painful inflammation. The examiner was also unable to determine a baseline of severity of the claimed disability based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected bilateral foot disability.

Secondary service connection on the basis of aggravation may only be granted when there is an increase in severity of the nonservice-connected beyond a medically established baseline due to the service-connected disability. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id.

In a December 2020 clarification opinion, the October 2020 examiner indicated that he reviewed the Veteran's claim file and that Dr. Parmenter diagnosed the Veteran with a left foot capsulitis and bursitis following an acute injury in July 2013. The examiner noted there were diagnoses in July 2013 of unilateral Morton's Neuroma of the right foot 3rd web area and a reactive bursitis of the foot with capsulitis and neuritis following, "the [Veteran] jumped off and sustained the injury to the area." The examiner stated that this medical record indicates that the Veteran's neuropathy is unilateral and his bursitis, also unilateral, was secondary to a specific traumatic event. The examiner noted Dr. Parmenter did not attribute the cause of the Veteran's claimed neuropathy at time of diagnosis to the service-connected bilateral pes planus or indicate that it was a contributing factor for his injury. 

The Board finds of most probative value are the medical opinions of the VA examiners in October 2014, August 2019, October 2020, and December 2020. The VA examiners' opinions provide competent and probative evidence that weighs against the Veteran's claim because the examiners collectively reviewed the claims file, interviewed the Veteran, performed a physical examination, and provided a medical opinion supported by well-reasoned rationale, which was based upon the facts of the case and medical principles. The examiners' opinions are consistent with the lay and medical evidence of record.

Following the examination in July 2019, the VA examiner opined that the medical records did not document a diagnosis of peripheral neuropathy in 2013, and thus, the Veteran's service was not likely the cause of his bilateral foot peripheral neuropathy. However, in her examination report, she noted a 2013 diagnosis of peripheral neuropathy of the bilateral foot. The diagnosis noted in the examination report appears to be based upon the July 2013 private treatment record from Dr. Parmenter, which reflects a reactive bursitis of the left (and capsulitis and neuritis) and neuroma of the right foot. The October 2020 VA examiner was able to review these medical records and explained thoroughly the difference between neuritis and neuropathy, and in his December 2020 clarification opinion, ultimately found only unilateral neuritis in the left foot, or "neuropathy" as claimed by the Veteran, and attributed it to a "jumped off" injury sustained post-service in July 2013.

Moreover, the October 2014 VA examiner stated that the Veteran had a negative EMG, which would indicate that the Veteran did not have a distortion or alternation in his anatomy or gait to the degree that resulted in a specific nerve damage. The examiner also noted that bilateral neuropathy, in the absence of a positive EMG, in the form of small fiber neuropathy, can occur from a variety of conditions including, but not limited to, vitamin deficiencies, changes as part of normal aging, and transient elevation in blood sugar. Assuming that the Veteran had small fiber neuropathy, the type not shown on EMG, such neuropathy would not be caused by distortion or alteration in anatomy or gait, and thus, would not be related to the service-connected bilateral foot disability. In other words, the Veteran may have neuropathy but does not have the type of neuropathy that is caused by the Veteran's fallen arches as part of the service-connected bilateral foot disability. The VA opinions provide the most probative and competent medical evidence of record regarding the Veteran's service-connected bilateral foot disability, and the claimed neuropathy of the bilateral foot.

Although the Veteran claims that his peripheral neuropathy is related to service or a service-connected disability, he is not competent to directly link the current peripheral neuropathy to service or a service-connected disability, 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. The origin or cause of the Veteran's peripheral neuropathy is not a simple question that can be determined based on mere personal observation by a lay person. Therefore, as the evidence does not support a relationship between peripheral neuropathy and service, the nexus element is not met.

As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current peripheral neuropathy in service and that his peripheral neuropathy did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service in December 1962. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for more than 50 years following service discharge until the Veteran had symptoms of peripheral neuropathy in the feet. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 50 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claims for service connection for peripheral neuropathy of the bilateral foot. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence and the claims for entitlement to service connection for peripheral neuropathy of the left and right feet are denied.

5. Entitlement to a TDIU rating.

Initially, the Board notes that the issue involving TDIU stems from the Veteran's formal TDIU application (VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability), which was received by VA in July 2017. In a May 2021 rating decision, a separate evaluation was assigned for ankylosis, degenerative arthritis, osteoarthritis, meniscal tear, status-post, unicompartmental oxford partial left knee arthoplasty at a 40 percent rating, effective April 27, 2021. As a result of this award, the Veteran now has a combined 100 percent disability rating as of April 27, 2021.

The grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Board notes that no single service-connected disability is rated as 100 percent disabling, other than the periods of temporal 100 percent for convalescence from December 11, 2017, to April 1, 2018, and that the preponderance of the evidence is against a finding that any of the service disabilities alone renders him unemployable since April 27, 2021.

The Veteran has alleged TDIU due to multiple service-connected disabilities. See VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in July 2017 (alleging feet, knees, back and hips were the disabilities that prevented him from securing or following any substantially gainful employment). Thus, once the Veteran was in receipt of a combined 100 percent disability rating for hall of the service-connected disabilities, the TDIU claim became moot. The issue of entitlement to a TDIU rating is now characterized as whether such benefit is warranted prior to April 27, 2021.

TDIU may be assigned when the schedular rating is less than 100 percent and the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341 (a), 4.16(a).

38 C.F.R. § 4.16(a) establishes that the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.

In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363.

Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran's service-connected disabilities meet the minimum disability rating percentages to qualify for consideration of a TDIU award under the schedular criteria during the period on appeal. Although the Veteran does not have an individual disability rated at 60 percent or higher, he was first assigned a rating of 50 percent for bilateral pes planus /plantar fasciitis/ traumatic arthritis/ mid-foot deformity, bilateral, to include Morton's neuroma on February 9, 2017, with additional disabilities sufficient to bring the Veteran's combined rating to 70 percent or more. Since July 2017, the Veteran has also had disability ratings between 10 to 40 percent for degenerative arthritis of the spine, left knee dislocated semilunar cartilage, tinnitus, left knee meniscal tear and degenerative arthritis, osteoarthritis of the right hip, osteoarthritis of the left hip, left knee disability with symptomatic removal of semilunar cartilage varicose veins of the left leg, and varicose veins of the right leg. Additionally, the Veteran has several other service-connected disabilities that have received noncompensable ratings. Based on the above, the Veteran has had an 80 percent combined evaluation prior to February 9, 2017, a 90 percent combined evaluation from February 9, 2017 until December 11, 2017 to April 1, 2018, when he was at a 100 percent temporal total evaluation for convalescence, and a 90 percent rating thereafter until the award of a combined 100 percent rating since April 27, 2021. See 38 C.F.R. § 4.25 Table I. The Veteran meets the schedular criteria for a TDIU rating throughout the appeal period. 38 C.F.R. § 4.16 (a).

For clarity purposes, prior to April 27, 2021, the Veteran was not service connected for ankylosis, degenerative arthritis, osteoarthritis, meniscal tear, status-post, unicompartmental oxford partial left knee arthroplasty.

In a July 2017 statement, the Veteran stated that four doctors have stated he was unable to work or perform gainful employment, including M.O., nurse practitioner; Dr. W.B.; Dr. R.B.; and Dr. Parmenter. In the July 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran documented he had worked in maintenance from March 2002 to July 2007 and completed eight years of grade school. He wrote he became too disabled to work in March 2009. The Veteran contended that he was precluded from securing or following a substantially gainful occupation due to his feet, knees, back, and hips.

In a July 2017 VA Form 21-4192, Request for Employment Information, the Veteran's former employer indicated that the Veteran stopped working there because he was "laid off." The employer noted that the Veteran last worked on July 18, 2007 and did not document any concessions to the Veteran by reason of age or disability (the employer left that that question blank).

In a February 2021 brief, the Veteran's representative addressed several pieces of evidence including medical records, medical opinions, and lay statements. The Veteran's representative, in sections C through E and K through M, reference VA examinations that document the Veteran's limitations in ability to stand, walk, bend, squat and kneel, which are discussed below. In sections G through I, the lay statements from the Veteran's sister-in-law, brother, and wife are addressed, which reflect the Veteran's inability to stand or walk for long periods of time, assist with household chores, and poor mobility. The Veteran's brother also indicated that the Veteran's constant pain affects his concentration and makes him irritable.

The Veteran's representative also referenced, in section J, an opinion from Dr. Homer Skaggs, who wrote the Veteran cannot stand or walk for longer than 10 minutes, sit for more than an hour, or lift and carry more than 10 pounds. Dr. Skaggs stated that if the Veteran were to try and work, he would need to miss or leave early three or more days per month, require additional breaks daily, and would frequently be unable to maintain concentration due to his back, knees, and feet. Dr. Skaggs concluded that it is more likely than not that the Veteran is unable to maintain substantially gainful employment due to the combined effects caused by the service-connected disabilities.

In section N, the Veteran's representative discussed the opinion from a vocational expert, Ms. Stephanie Barnes. She opined that the Veteran was unable to perform his prior work in carpentry and maintenance due to the physical limitations from the service-connected impairments. However, she also indicated that the Veteran's record documents mild obstructive sleep apnea (OSA), for which the Veteran is not in receipt of service connection. Ms. Barnes wrote that Dr. B. found the Veteran had difficulty communicating, loss of sleep, and inability to concentrate which are barriers to other employment. Moreover, the Veteran is not in receipt of service-connection for neuropathy of the bilateral foot and left foot bursitis that contribute to his physical impairment, which are referenced by medical professionals cited by Ms. Barnes in her opinion.

In a May 2017 VA examination report for the Veteran's service-connected hip disabilities, the examiner noted functional impact of the disability as difficulty walking more than 100 feet. Within the May 2017 VA examination report for the knees, the examiner documented that functional impact of walking more than 100 feet required the Veteran to stop and rest. An August 2019 VA examination of the knees documents functional impact as difficulty with kneeling, squatting, standing for any length of time, walking any distances, and climbing stairs. In a May 2021 VA examination report for the knees, the functional impact of his disability was described as no longer being able to perform normal activities of daily living, his wife assisted him at home and does all the shopping and most of the housework due to his pain and instability in the legs. The Veteran was no longer able to stand or walk for long periods of time and had trouble sitting, walking lifting and helping around the house. The examiner noted that the Veteran is a retired carpenter but also stated that he missed greater than five weeks of work lost in the preceding 12 months, which the examiner indicated was confirmed in a medical record. The examiner did not specify which medical record to which she was referring. A review of the medical records is absent for time missed from work in the year preceding the examination other than a December 2020 VA medical record that reflects the Veteran was retired from working in apartment maintenance. The Veteran is service-connected for the left knee only but has disability of both knees.

In an April 2017 VA examination report for the lumbar spine, the examiner documented functional impact of the back disability as difficulty walking and bending on a regular basis. The April 2017 VA examination report of the feet show functional impact of the bilateral foot disability as difficulty walking more than 100 feet without pain.

The Board may not consider the impact of nonservice-connected disabilities when ascertaining entitlement to TDIU. The standard for granting entitlement to a TDIU rating is not whether the Veteran can obtain employment similar to that of his previous employment, but rather, whether the Veteran is unable to secure or follow any form of substantially gainful occupation, which is consistent with his educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a TDIU rating prior to April 27, 2021. The reasons follow.

Regarding the Veteran's education, training, skills, and work history, his past occupation includes work in carpentry and maintenance, with the Veteran being out from work beginning in July 2007, but claiming an inability to work as of 2009. In the TDIU application submitted by the Veteran, he indicated that he had completed eight years of grade school. 

As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges the Veteran experiences chronic pain in his lumbar spine, bilateral hip, left knee, and bilateral foot. While the Veteran's wife stated that the Veteran had difficulty hearing her, the Veteran has not alleged that his hearing loss and tinnitus impact his ability to work. When he submitted the TDIU application in 2017 and again in 2020, the Veteran did not include hearing loss or tinnitus on the application as being a disability or disabilities that precluded him from working. Thus, hearing loss and tinnitus are not shown to cause significant impairment on the Veteran's ability to work. 

The Veteran maintains some independence in activities of daily living to the extent that he could bathe but needed help with bathing parts he could not reach. He is able to dress himself and use the bathroom and can move in and out of bed or a chair unassisted. The Veteran has required only routine treatment without significant exacerbations requiring urgent or inpatient care. He has maintained functional mobility with the use of an assistive device, such as a walker or scooter. This is consistent with clinical findings of the Veteran having either close to full or full muscle strength in the lower extremities with no atrophy. (Atrophy in the lower extremities is noted in an April 2021 VA examination report, which is dated the same day as the Veteran being awarded a combined 100 percent evaluation.) As such, the Veteran's service-connected disabilities could have been appropriately accommodated by restricting the Veteran to occupations that could primarily be performed while sitting, allowed the use of an assistive device for brief periods of ambulation, and allowed the Veteran to intermittently change positions to adjust for comfort. Thus, prior to April 2021, the Veteran was physically capable of performing the requirements of substantially gainful employment.

The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e., up to one third of the time), and/or a negligible amount of force frequently (i.e., from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering this definition for purposes of deciding the Veteran's claim. The longitudinal record indicates that the Veteran is capable of sedentary work with a sit/stand option and the use of a walker for ambulation or a scooter. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment.

As to the Veteran's mental ability to perform substantially gainful employment, he has no service-connected psychiatric disorder. The Veteran's service-connected disabilities have not been shown to cause the Veteran communication deficits. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning. The Veteran has maintained relative independence in activities of daily living and receives support from his wife. Ms. Barnes had written that the Veteran had difficulty communicating, experienced loss of sleep, and the inability to concentrate, which she wrote are barriers to other employment. However, she attributed this, in part, to non-service-connected disabilities, such as OSA, which, again, is not a disability for which the Veteran is service connected. As the Veteran's service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment.

Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment prior to April 27, 2021. The evidence does not reflect that the Veteran is precluded from sedentary employment. The Board acknowledges the Veteran had an occupational history in a physically demanding career in carpentry and maintenance. However, the Veteran knows how to read and write and comprehends what he reads, which is demonstrated in his own submissions to VA since he started filing claims for VA benefits in 2012. This includes submissions, where he would attach relevant documents to support his claims and write relevant comments, which shows his comprehension. Thus, the Veteran would be capable of performing jobs, such as a telemarketer, where the employee makes or takes calls and primarily reads from a script, which does not require extensive training or experience, could be performed while seated, would not be impacted by the Veteran's use of an assistive device, and would allow the Veteran to change positions for comfort. He could also be a customer service agent, who interacts with customers to handle complaints, process orders, and answer questions. These positions are often performed from home, where the Veteran could be seated and would allow the Veteran to switch positions for comfort. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran would be able perform. This is evidence against a finding that the Veteran would have been unable to secure or follow all forms of substantially gainful employment due to his service-connected disabilities prior to April 2021.

In sum, while the evidence discussed herein documents some functional impact upon the Veteran's ability to work based upon the service-connected disabilities, as contemplated by the Veteran's increased combined rating over time, the Board concludes that the preponderance of evidence weighs against the Veteran's claim for entitlement to a TDIU rating prior to April 27, 2021.

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Cheng, 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.