Citation Nr: 21075790 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-43 765 DATE: December 21, 2021 ORDER Entitlement to service connection for right foot neuropraxia of the second toe interspace (hereinafter "right foot neuropraxia") is denied. FINDING OF FACT Right foot neuropraxia manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by another service-connected disability. CONCLUSION OF LAW The criteria for service connection for right foot neuropraxia have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1991 to August 1991. Although this period of service is characterized on the DD-214 as active duty for training (ADT), as the Veteran is service-connected for a disability incurred during that period of ADT, it is considered active service for VA purposes. 38 U.S.C. § 101(2), (24). This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in July 2021, and the requested medical opinion was obtained in August 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2021 the Board also denied entitlement to service connection for bilateral flatfeet with plantar fasciitis, left and right knee disabilities, a left ankle disability, a right hip disability, and a low back disability. As such, these issues are no longer on appeal. 38 C.F.R. §§ 20.1000, 20.1001, 20.1100. Veterans Claims Assistance Act of 2000 (VCAA) In their November 2021 appellate brief, the Veteran's representative argues that remand is necessary to obtain additional federal records to verify all of the Veteran's periods of ADT and inactive duty for training (IDT). The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2), (3). VA will refrain from providing assistance when there is no reasonable possibility that such assistance would substantiate the claim. 38 C.F.R. § 3.159(d). First, the Board notes that the RO has obtained the Veteran's personnel records, which document the dates of several periods of ADT, and therefore the RO has in fact made efforts to verify the Veteran's periods of ADT and IDT. 38 C.F.R. § 3.159(c)(2). Further, the Veteran has only alleged that his disability stems from one period of ADT, from June 1990 to August 1990, which has already been verified. To the extent that the representative is arguing that further efforts are necessary, the Board finds that a further remand for record to verify further periods of ADT or IDT, if any, has no reasonable possibility of substantiating the claim on appeal. As discussed in detail below, the most recent VA medical opinion clearly states that based on the evidence of record the claimed right foot disability had its onset in approximately 2013, which is well after the Veteran's separation from the National Guard and the cessation of his periods of ADT and IDT. The examiner in no way relied on the fact that there were no verified periods of ADT or IDT. As the current opinion of record establishes that the disability could not have been incurred during any portion of the Veteran's National Guard service, it is unnecessary to determine when, if any, additional periods of ADT or IDT occurred. Further, while private opinions are of record concerning the etiology of the Veteran's right foot disability, these opinions only link the disability to the Veteran's nonservice-connected pes planus with plantar fasciitis, not to an in-service injury or disease. As such, the Board finds that a remand to obtain additional records verifying periods of ADT and IDT is not warranted as such development has no reasonable possibility of substantiating the current claim for service connection. would not be relevant has no reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.159(d). Therefore, the Board will proceed to address the appeal on the merits. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Entitlement to service connection for a right foot disability. The Veteran was diagnosed with neuropraxia of the right second toe interspace during an August 2021 VA examination. As such, a current disability has been shown. The Board notes that the Veteran has also been diagnosed with both pes planus and plantar fasciitis. However, service connection for these disabilities was denied in the prior Board decision. As such, the Board will only consider the other diagnosis of record, right foot neuropraxia. Concerning an in-service injury, the medical records do not reflect that he was treated for or diagnosed with the current right foot disability during service. However, the Veteran has stated that he experienced foot pain beginning with his period of ADT from June 1990 to August 1990, and further submitted lay statements from other individuals asserting that after returning home from training the Veteran had difficulty with his feet. The Veteran also reported engaging in extensive marching and long periods of standing during training, which he stated was a cause of his foot symptoms. As such, the Board finds that an in-service injury or disease has been shown. Thus, the dispositive issue is whether the current disability is related to the Veteran's service. While the Veteran has stated that his right foot neuropraxia is directly related to his periods of ADT or IDT, he is not competent to provide such an opinion as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, these statements are entitled to no probative weight. To the extent the Veteran has asserted that he has experienced symptoms of the currently diagnosed right foot neuropraxia since service, these statements conflict with other evidence of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, a July 2013 private treatment records reflects that the Veteran reported increased pain in the heels of his feet, but not in the forefoot. A December 2013 private treatment record then notes that the Veteran reported with a new complaint of increased pain, tingling, and burning in the right forefoot. The Veteran stated that he did not recall any change in shoe wear, activity, or injury that caused the onset of the pain, but stated that he is on his feet throughout the day. The Veteran was diagnosed with neuropraxia of the right second interspace at that time. As the Veteran's assertions that he experienced symptoms associated with the right foot disability since his period of service are directly contradicted by the private treatment records, the Board finds that they are not credible and entitled to no probative weight. Id. VA obtained a medical examination concerning the etiology of the Veteran's right foot neuropraxia in August 2021. The examiner stated that the right foot neuropraxia was less likely than not related to the Veteran's period of service in the National Guard generally. While the examiner noted that the Veteran reported an onset of foot pain during training in 1990, the examiner also noted that the right foot neuropraxia was not diagnosed until 2013 to 2014. The examiner further noted that the December 2013 treatment records specifically noted that the Veteran reported that his increased pain and other symptoms were a new issue. The examiner then reasoned that based on these records, and the fact that in 2013 the Veteran described the symptoms as a new problem, the right foot neuropraxia had its onset well after the Veteran's period of National Guard service. Finally, the examiner noted that the Veteran had been working as a painter since 2002, and that the prolonged standing required by such a job was more likely the cause of the disability. There is no evidence that the examiner was either not competent or credible, and the examiner supported the opinion with a well-reasoned rationale that addressed the Veteran's lay statements, directly cited to medical evidence of records, and identified and alternative and more likely cause of the disability. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As discussed above, the Veteran reported a new onset of increased right forefoot pain, along with tingling and burning sensations, in a December 2013 treatment records. The Veteran was diagnosed with right foot neuropraxia at that time. However, prior to that date a July 2013 record reflects that the Veteran reported only pain in his heels, and not his forefoot. As the statements made in these records were for treatment purposes, the Board finds them to be particularly probative as to the onset of the right foot neuropraxia. White v. Illinois, 502 U.S. 346, 356 (1992) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). The Board notes that the Veteran has submitted private medical opinions in support of his claim. While the opinions indicate that the Veteran's pes planus and plantar fasciitis likely caused or aggravated his right foot neuropraxia, none of the opinions link the disability directly to the Veteran's period of National Guard service. As such, the private opinions are entitled to no probative weight with respect to the question of direct service connection. Likewise, the Veteran has submitted several articles generally discussing pes planus or flatfeet and the development of pes planus in the military. However, these articles do not in any way discuss the Veteran's diagnosed right foot neuropraxia, or come to clear conclusions with the necessary degree of certainty. Wallin v. West, 11 Vet. App. 509, 514 (1998); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, these articles are also entitled to no probative weight as to the presence of a nexus. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's right foot neuropraxia is causally related to his period of service. The Veteran is not competent to state that his neuropraxia is directly related to service, and his statements that he has experienced symptoms since service are directly contradicted by his own statements made at the time of the right foot neuropraxia diagnosis. The submitted private opinions and articles do not link right foot neuropraxia to the Veteran's military service in any way. Conversely, the August 2021 VA examiner provided a clear and well-supported opinion indicating that the disability was less likely than not related to service. Further, the December 2013 private treatment record reflects that the Veteran reported a recent onset of symptoms, which were diagnosed as right foot neuropraxia. As the preponderance of the evidence is against a finding of a nexus, service connection on a direct basis if not warranted. 38 C.F.R. §§ 3.102, 3.303. As noted above, the Veteran has submitted private opinions indicating that his separately diagnosed flat feet and plantar fasciitis caused or aggravated his right foot neuropraxia. However, the Veteran is not service-connected for either pes planus or plantar fasciitis. As such, secondary service connection for right foot neuropraxia is not possible. 38 C.F.R. § 3.310. Lastly, neuropraxia is not specifically considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, to the extent it could be considered and organic disease of the nervous system, service connection based on the presumption in favor of chronic diseases is not possible the periods of ADT did not exceed 90 days. 38 C.F.R. § 3.307(a)(3). Further, as discussed above the medical evidence reflects that the Veteran reported a new onset of right foot neuropraxia symptoms in December 2013, thus showing that the disability was not continuous since his period of ADT in June 1990, or any other period of ADT or IDT performed during the Veteran's period of service in the National Guard. 38 C.F.R. § 3.303(b). Therefore, presumptive service connection or service connection based on continuity of symptomatology are not warranted. The preponderance of the evidence weighs against a finding that the Veteran's right foot neuropraxia is causally related to his service or was caused or aggravated by another service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.