Citation Nr: 21074858 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-00 421 DATE: December 16, 2021 ORDER Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a respiratory disorder, claimed as bronchitis, is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence is against finding that a left foot disorder is related to an in-service injury or disease. 2. The preponderance of the probative evidence is against finding that a respiratory disorder, to include bronchitis, is related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 1943 to April 1946. These issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in April 2021. The Board notes that the Veteran's claim for entitlement to service connection for a disability manifested by constipation was granted since the prior remand. As this grant represent a full grant of the benefits sought, the issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The VA received these claims for service connection in April 2016. On his December 2016 Form 9, the Veteran generally contended that his service treatment records (STRs) show treatment for these disorders, and he has current diagnoses for his claims. Moreover, he contends that these disorders have caused him problems since service. The Veteran has current diagnoses of metatarsalgia, plantar fascitis and degenerative arthritis in his left foot. This is confirmed by his July 2021 VA examination. Also, a current diagnosis of chronic obstructive pulmonary disease is verified by an August 2021 VA examination and private medical records indicate he has had pulmonary nodules on his lung along with a diagnosis and treatment for atrial fibrillation. While acute bronchitis was noted at his August 2021 VA examination, the examination reported stated that this disorder has resolved. Nevertheless, current disorders exist for the claims, and the first Shedden element is met. A June 1945 inservice medical record indicated the Veteran was seen at the orthopedic clinic for left foot metatarsalgia but x-rays associated with this visit were interpreted as being normal. His inservice records also note he experienced acute nasopharyngitis and acute bronchitis in November 1945. Thus, the second element of Shedden is also met for both claims. The Board finds the claims must be denied as the preponderance of the probative evidence is against the third Shedden element that the current disorders are linked to active duty including the in-service complaints and treatment noted above. From June 1945 (left foot) and November 1945 (bronchitis) to separation from military service in April 1946 there are not any additional complaints for the left foot or a lung-related disorder. At separation, the record of examination noted there were no musculoskeletal defects and clinical examination of the feet and lungs was "normal." As to a chest x-ray, it was noted there were "no significant abnormalities." There are no medical records dated close to the time of the Veteran's separation from active duty. Private medical records indicate the Veteran was previously a smoker. Notably, the only medical opinions of record addressing the left foot and the respiratory disorders indicate that the diagnosed disorders are not related to service or to the in-service complaints. An October 2016 VA opinion did not find the left foot disorder was link to service because the medical record does not show a correlation between service and the current diagnoses. Later, a September 2021 VA opinion explained that metatarsalgia is self-limiting and is caused by high-impact and rigorous activity that is consistent with service in the military. However, the Veteran has not engaged in this type of activity for many years, so the metatarsalgia has likely resolved. Moreover, metatarsalgia was not noted during the physical examination potion of the September 2021 VA examination. Instead, the examiner countered, that his current disorder of plantar fascitis is more likely related to the Veteran's osteoarthritis which was diagnosed in 2016, 30 years after service. Thus, the time between the Veteran's inservice rigorous activity and his 2016 diagnosis undermines the contention that his osteoarthritis is related to his service. Instead, the examiner concluded, his ostearthritis is likely related to the Veteran's age. Therefore, as the Veteran's current osteoarthritis is not a consequence of service, his current plantar fascitis is not either. The Board finds the opinions, particularly the September 2021 opinion, are probative because they are explained and are based on the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). While the October 2016 opinion did not address the Veteran's inservice medical records or his complaints, the September 2021 VA cures these defects and is adequate on its own. As for his respiratory disorder, the initial October 2016 VA examination found there was no clinical diagnosis, and his x-ray was normal. The September 2021 opinion noted the Veteran's one episode of bronchitis does not constitute or predispose the Veteran to any chronic lung disorder. Moreover, it was noted that bronchitis often resolves without any sequalae. The examiner went on to state there is just not enough complaints or treatments to meet the burden of proof that such a common respiratory condition could have predisposed the Veteran to the development of the current lung conditions. The Board notes that, in evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same. Schoolman v. West, 12 Vet. App. 307 (1999). Thus, the September 2021's opinion contention regarding the burden of proof has no probative weight to the Board's determination. Nevertheless, the Board finds that the contention that the Veteran's inservice bronchitis and nasopharyngitis were acute in nature is probative and consistent with the record. See Bloom, supra. As noted, post-service medical records are scarce and do not indicate the Veteran has had a lung disorder since service. Moreover, his smoking history further undercuts an etiology to service. In assessing the claims, the Board has considered the statements provided by the Veteran. On his Form 9 he stated that he has his claimed conditions, and they are shown in his service treatment records. Moreover, he stated that the conditions have been problems since service. A layperson he is competent to described observable symptomatology such as pain, limitation in his left foot, and breathing issues. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, the Veteran's claim as to these conditions continuing from active duty to the present is undercut by the contemporaneous evidence of record. The service treatment records are silent as to any findings of these disorders at discharge and the first evidence of the disorders is many years after discharge. The clinical records do not indicate continuity of symptomology. The Board finds that, if the Veteran had had continuity of symptomology of either disorder, he would have sought treatment for it much earlier. (Continued on the next page) Furthermore, the medical professional who reviewed the evidence found it likely that there was no continuity of symptomology. The September 2021 opinions have indicated the inservice medical conditions have likely resolved, and the current disorders are the result of pathologies unrelated to service. The Board finds the VA opinions, and the objective medical evidence backing them, are more credible than his opinion. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The VA opinions are based not only on an absence of medical evidence showing left foot arthritis, plantar fascitis, and lung disorder following service. They are also based on late onset and intercurrent diagnoses which have occurred since service. The Board finds that the preponderance of the probative evidence is against the claims. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for either claim. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.