Citation Nr: 21076005 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 20-04 732 DATE: December 22, 2021 ORDER Service connection for flat feet is denied. Service connection for a lower back disability is denied. FINDINGS OF FACT 1. The Veteran's bilateral pes planus was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. 2. The Veteran's low back disability including back pain was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303,3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for low back disability. In April 2017, the Veteran filed his claims for service connection for lower back and flat feet, which were denied in an October 2017 rating decision. The Veteran contends that he was issued boots in the military that had "little or none" foot support or cushioning which worsened his flat feet and eventually resulted in his current "early signs of neuropathy" in both feet. The Veteran also contends that heavy lifting as a medic placed strain and additional weight on his lower back and feet. See Handwritten statement titled Notice of Disagreement submitted September 2020. As a preliminary matter, the Board notes that the Veteran's service treatment records are unavailable for review. The record shows a memorandum finding no records located for the Veteran at the records management center after multiple searches for all records associated with the Veteran. See September 2017 Memorandum from VA Records Management Center. In certain circumstances, there is a heightened duty to assist in the development of the case. However, this heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). To that end, the Board notes that no VA examinations have been obtained in relation to the claims on appeal. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims for pes planus and low back pain. The Veteran's non-VA and VA treatment records do not show any complaints, treatment, or diagnosis of pes planus or low back pain until many years after separation from service. Likewise, post-service medical records do not show any ongoing treatment for pes planus or low back pain. In fact, the earliest medical notation of pes planus was in July 2017, which is approximately 50 years after discharge from service. Similarly, the earliest medical notation of "low back pain" was from the chiropractic records submitted by the Veteran showing manipulation and electrotherapy in July 2010, which is approximately 43 years after separation from service. Notably, the chiropractic medical records also show ongoing massage therapy sessions as treatment for his back from July 2015 to November 2016. See Foothills Chiropractic Health records received April 2017. However, in the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Furthermore, the Veteran's assertions of chronic low back pain since service or worsened flat feet, while competent, are not fully credible and are outweighed by other probative evidence of record. As noted above, post-service treatment records following service simply do not show any persistent symptoms or treatment related to the low back or feet. Rather, the record shows an extended period (in this case over four decades) after service without any manifestations of the claimed disabilities. The earliest medical evidence of degenerative arthritis was noted in July 2016, which is approximately 49 years after separation from service. See Northwest Family Medicine records. Specifically, private treatment records show an assessment of osteopenia determined by X-rays of the lumbar spine. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Furthermore, the Board notes that the prolonged period without a diagnosis is probative evidence against the claim. Critically, there is no medical opinion of record even suggesting that the currently diagnosed pes planus and low back pain are related to the Veteran's service. The Veteran has not submitted any evidence to the contrary. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). In addition, the Veteran's degenerative arthritis manifested well after one year after the Veteran separated from active service. Although arthritis may be considered a chronic disease for VA purposes, degenerative arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that degenerative arthritis manifested to a compensable degree within one year following the Veteran's discharge from service. Id. As discussed in detail above, medical records following service do not reflect any problems related to arthritis or affecting his bones or joints. As such, service connection on a presumptive basis is not warranted under 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Lastly, the Board recognizes the Veteran's personal assertions that his flat feet and low back are related to service. While the Veteran is certainly capable of describing the medical history and competent to report symptoms observable to a layperson, he is not competent to independently opine as to the specific etiology of a claimed disability or render a medical nexus of a disability to service, as such requires medical expertise and the ability to interpret diagnostic medical testing, including X-ray imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For this purpose, the Veteran's assertions do not constitute competent medical evidence, and the Board assigns more weight to the medical evidence. After weighing all the evidence of record, the Board the preponderance of the evidence weighs against finding that the Veteran's pes planus and low back disability began during service or is otherwise related to an in-service injury, event, or disease. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).] KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.