Citation Nr: 21074282 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-50 368 DATE: December 14, 2021 ORDER Service connection for a left foot disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1979 to February 1980 and from January to December 1981. 2. A left foot disorder, diagnosed as hallux valgus, hammer toes, and degenerative joint disease (DJD), as not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service. CONCLUSION OF LAW A left foot disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The matter comes before the Board on appeal of a September 2014 rating decision that reopened and denied a claim for service connection for status/post (s/p) bunionectomy first toe and hammertoe surgery of second on the left foot. In December 2019, the Board remanded the issue for additional development. It now returns to the Board for appellate adjudication. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the evidence, the Veteran has repeatedly asserted that she has flatfeet on the left, indicating in the July 2015 notice of disagreement (NOD) that it was chronic and not improved after five surgeries. She stated that the diagnosis of flatfoot was confirmed by a VA physician and VA treatment notes document a diagnosis of flat foot by Dr. DSD in November 2010, which he continued to note in podiatry consultations in 2011. However, a diagnosis of pes planus or flatfoot does not appear in subsequent VA treatment notes. While the record established that the Veteran had had multiple surgeries on the left foot and continued to have left pain, other than the November 2010 diagnosis of flatfeet, the reports of a left flatfoot were provided in the subjective medical history only. To that end, an April 2011 VA examiner found no evidence of pes planus. April 2011 and September 2011 X-rays did not show pes planus of the left foot. A February 2020 VA examiner did not diagnose pes planus but in September 2020 addendum stated that there was a diagnosis of left pes planus without explanation for that conclusion in light of the examination findings. A December 2020 VA addendum opinion by a different VA examiner found that records clearly indicated that there was no left pes planus. For a disability to be service connected, it must only be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, the claim on appeal was filed in December 2013, and the most recent definitive diagnosis of flatfoot was dated in 2011, at least two years prior, with multiple affirmative findings of no left flatfoot during the appeal period. The Veteran is competent to describe left foot symptoms but she is not competent to assign a diagnosis to her symptoms. Moreover, while she has stated that she had multiple surgeries for flatfeet, the medical evidence documents surgeries for bunions and hammertoes. Therefore, the weight of the medical evidence does not support a diagnosis of left flatfoot during the period on appeal or contemporaneous with the claim. Nevertheless, the February 2020 VA examiner diagnosed left hammertoes and noted post-surgical hallux valgus. A September 2015 VA treatment note reported left metatarsalgia s/p multiple left foot surgeries. Therefore, the first element of service connection a current disability is met. Next, the second element of service connection an in-service incurrence is also met. Service treatment records (STRs) note complaints of foot pain, findings of ankle swelling and bilateral ankle pronation, and prescriptions for "arch cookies" and rubber pads. Diagnoses included bilateral Achilles tendonitis, pes planus/pes plantaris, and bursitis. Nevertheless, the third element of service connection a medical nexus is not met. An April 2011 VA examiner opined that the Veteran's currently-diagnosed left foot disorders were not caused by or a result of left foot pain during service. The examiner reasoned that there was no relationship between the bilateral Achilles tendonitis treated while in service and the development of bunion (hallux valgus) and hammertoes on the left foot noted 21 years later. The examiner found that the current disorders were the result of aging, noting that there was no documentation of a complaint or treatment for any foot disorder from 1981 to 2002. The February 2020 VA examiner opined that the Veteran's plantar callus in service was acute, without evidence of chronicity since service, and not related to hammertoes. However, this opinion is inadequate as the plantar callus noted in the VA examination was from 1996 and not a current diagnosis. Further, the examiner did not consider any other foot or ankle complaints in STRs. In a clarification opinion received in September 2020, the examiner noted the Veteran's contentions that her foot disorders (left foot callus, left hallux valgus, and left hammertoes) started in service but she did not seek treatment until 1995; however, the examiner found that there was no evidence that the disorders started in service and it was not at least as likely as not to have had its onset during service or otherwise related to it. In addition, the examiner determined that the disorders were not at least as likely proximately due to or aggravated by another left foot injury. The examiner indicated that the initial surgery of the left hammer toes created the necessity of the next surgery because of complications. In December 2020, a different examiner reviewed the claims file and noted that the STRs show complaints of ankle/foot pain in 1981 which were diagnosed as Achilles' tendinitis and stated that Achilles' tendinitis was not related to the current s/p hallux valgus, s/p hammer toes or callous formation. The examiner indicated that the remainder of STRs were negative for any foot complaints, including the separation examination, which was negative for any self-reported foot disorders and for any identified foot pathology on physical exam. Further, the examiner observed that the next documented complaint of foot pain was decades after service and that an intercurrent/new injury or disease could not be excluded. Thus, the examiner opined that the Veteran's current hallux valgus s/p surgical correction, hammer toes s/p surgical correction, callous formation, and foot pain was not incurred in or caused by service. There are no competent contradictory opinions of record. Thus, the medical evidence does not support the claim for service connection on a direct basis. Degenerative joint disease (DJD) was noted in the left foot in a November 2010 VA podiatry note, and DJD (arthritis) is considered a chronic disease under 38 C.F.R. § 3.309. However, as stated, STRs show no complaint, treatment, or diagnosis of a left foot disorder, including at the separation examination. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, DJD was first noted in 2010, some 30 years after discharge. Moreover, the first evidence of any left foot disorder was related to the bunionectomy in 2002. These events were decades after service. As the Veteran was discharged in 1981 and symptoms were not identified until 2002 at the earliest, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1981 but did not note symptoms until 2002 at the earliest, with DJD diagnosed in 2010. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, the medical evidence does not support presumptive service connection on any basis. The Board has considered the lay statements of the Veteran and her relatives and friends that she has a left foot disorder that was caused by service. She has argued that she developed flat feet in service from marches during boot camp, and the relatives' and friends' statements state in various ways that she hurt her feet in service, including fallen arches. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, and other laypersons are competent to report manifestations of a disability they observe. However, laypersons are not competent to offer opinions as to the nature and etiology of her current disorder due to the medical complexity of the matters involved. Moreover, the lay statements of the relatives and friends are reflections of the Veteran's description of her medical history to them rather than based on personal observations. Competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.