Citation Nr: 21076846 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-23 504 DATE: December 28, 2021 ORDER Service connection for a right foot disorder is denied. Service connection for neuropathy of the right lower extremity is denied. Service connection for a back disorder is denied. Service connection for a right hip disorder is denied. FINDINGS OF FACT 1. The Veteran's right foot disorder was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, and to the extent that the Veteran had a preexisting foot disorder, his preexisting foot disorder was not aggravated by active duty service. 2. The Veteran's neuropathy of the right lower extremity, back disorder, and right hip disorder were not shown in service or for many years thereafter and are not otherwise etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to October 1990. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). If a disorder is noted upon entry into service, the veteran has the burden of establishing aggravation by showing that the preexisting disorder has increased in severity as a result of active duty service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Moreover, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for a right foot disorder 2. Entitlement to service connection for neuropathy of the right lower extremity 3. Entitlement to service connection for a back disorder 4. Entitlement to service connection for a right hip disorder The Veteran contends that service connection is warranted for right foot, back, and right hip disorders, and neuropathy of the right lower extremity. Specifically, he contends that during his active duty service, he began to experience foot pain after walking approximately five miles, while carrying two packs that weighed approximately 50 to 60 pounds each, and that his current foot disability is related to that incident. He further contends that his current foot disorder is related to that event because the symptoms of his current foot disorder are the "same" as the symptoms he experienced during his active duty service. With respect a back disorder, a right hip disorder, and neuropathy of the right lower extremity, he contends that service connection is warranted because his right foot disorder caused him to alter his gait, resulting in him developing those disorders. Based upon the evidence of record, the Board determines that service connection for a right foot disorder, a back disorder, a right hip disorder, and neuropathy of the right lower extremity is not warranted because the preponderance of the evidence weighs against finding that they began during service or are otherwise etiologically related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.310. To the extent that the Veteran had a foot disorder that preexisted his active duty service, the Board concludes that the preponderance of the evidence weighs against finding that such disorder was aggravated by the Veteran's active duty service. 38 U.S.C. § 1153. As an initial matter, to the extent that the Veteran had a right foot disorder that preexisted his active duty service, the Board finds that his right foot disorder was not aggravated by his active duty service. Here, the report from the July 1988 entrance examination completed by a military physician noted that the Veteran had mild pes planus. Given that mild pes planus was noted on entry, the presumption of soundness does not attach to his right foot disorder. See Wagner, 370 F.3d at 1096. The Board determines that the clinical evidence fails to show that the Veteran's right foot disorder was aggravated by active duty service. Indeed, the Veteran's service treatment records do not reflect any complaints related to pes planus or a worsening of his preexisting right foot disorder. In fact, the report from the June 1990 separation examination reflects that his feet were normal, and he denied foot trouble in his June 1990 separation report of medical history. The Board acknowledges that a July 1989 service treatment record reflects that he reported the presence of bumps on the bottom of his right foot that were assessed as calluses, but finds that his treatment for calluses does not establish worsening of preexisting pes planus because there was no further treatment during his active duty service, he denied foot trouble in his June 1990 separation of medical history, and his feet were determined to be normal by the military physician who performed that June 1990 separation examination. The Board also acknowledges that the post-service treatment records, including October 2006, December 2009, April 2010, and April 2011 treatment records, reflect that the Veteran sought treatment for right foot pain. Nevertheless, such records showing that he began seeking treatment for right foot pain more than 16 years after his separation from service do not show that preexisting pes planus had worsened during service, particularly given that he denied foot trouble in the June 1990 report of medical history, that the June 1990 separation examination reflects that the military physician determined that his feet were normal, and the lack of any complaints concerning pain other than the one report of bumps that were assessed as calluses. Next, based upon the evidence of record, the Board concludes that even if the Veteran did not have a preexisting right foot disorder, service connection would not be warranted, and that service connection is not warranted for a back disorder, a right hip disorder, and neuropathy of the right lower extremity. Initially, the Board finds that the Veteran's service treatment records fail to establish that his right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity began during or are otherwise etiologically related to his active duty service for several reasons. First, his service treatment records do not reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with a back disorder, a right hip disorder, or neuropathy of the right lower extremity. Next, the report from his June 1990 separation examination reflects that the examining physician determined that his feet, lower extremities, and spine were normal and do not document any symptoms that could be related to disorders impacting his right foot, back, hip, or right lower extremity. Similarly, in his June 1990 report of medical history, he denied foot trouble, recurrent back pain, rheumatism, bursitis, joint, or other deformity, and neuritis. Although a July 1989 service treatment record reflects that he reported having two bumps on the bottom of his right foot, and that he was assessed with having a severe callused area, this appears to have resolved during service given that, as discussed above, the June 1990 report of medical history reflects that he denied foot trouble and the report from the June 1990 separation examination reflects that the examining physician determined that his feet were normal. Given the lack of treatment for a back disorder, a right hip disorder, and neuropathy of the right lower extremity, that his right foot calluses appear to have resolved during service, and that the June 1990 report of medical history and separation examination do not document any disorders impacting his right foot, back, right hip, or right lower extremity, any claim that these disorders began during or are otherwise etiologically related to active duty service is not credible. Accordingly, his service treatment records fail to establish that service connection is warranted for these disorders. The post-service clinical evidence also fails to establish a relationship between the Veteran's current right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity and his active duty service. With respect to a right foot disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a right foot disorder until October 20016, more than 16 years after his separation from service. With respect to a back disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a back disorder until September 2011, more than 21 years after his separation from service. With respect to a right hip disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a right hip disorder until March 2013, more than 22 years after his separation from service. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus for the Veteran's bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the Veteran's statements regarding the history of his symptoms of a right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity, including that his foot disorder began during his active duty service when he was required to walk five miles while carrying two packs weighing approximately 50 to 60 pounds each, that his right foot disorder has persisted since that incident, that he currently experiences the same symptoms that he experienced on active duty concerning his foot disorder, and that his foot disorder caused him to alter his gait, leading to his current back disorder, right hip disorder, and neuropathy of the right lower extremity. Although he is competent to report that he has experienced symptoms of these disorders, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent he contends that his right foot disorder was caused by active duty service and have persisted since service, and to the extent that he implies that his back disorder, right hip disorder, and neuropathy of the right lower extremity were caused by active duty service and have persisted since by asserting that service connection for those disorders is warranted on a direct or secondary basis, the Board determines that the reported history of continued symptoms is not credible or probative. Indeed, he contention that he has experienced continuous symptoms of these disorders is not credible given that he had a normal separation examination, denied foot trouble, recurrent back pain, and rheumatism, bursitis, joint, or other deformity, and neuritis and did not seek treatment for or report symptoms of these disorders for significant durations in excess of 20 years. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). Moreover, a July 2013 treatment record reflects that he did not have any back or joint pain. Accordingly, a continuity of symptoms is not established based upon the Veteran's statements. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active duty service and his right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity. Indeed, there is no objective medical evidence linking these disorders to his active duty service. Here, the Board places significant probative weight on the opinion of the April 2021 VA examiner who opined that it was less likely than not that the Veteran's diagnosed right plantar fasciitis and right pes cavus were due to any incident of active duty service, to specifically include his 1989 diagnosis of calluses because the Veteran's June 1990 separation examination was silent for any right foot complaints, symptoms, diagnoses, or relevant exam findings. The examiner further supported the opinion by explaining that although a July 1989 service treatment record reflected that he had calluses on his right foot trimmed, no additional diagnoses were rendered, and there was no documentation of ongoing functional impairment after his calluses were trimmed. Additionally, the examiner explained that the Veteran was chaptered out of active duty service due to the inability to meet the weight standard, which was not in any way related to his right foot disorder, rendering the Veteran's proposition concerning a right foot disorder to include capsulitis of the right second metatarsophalangeal joint, equinus, tendonitis, and tarsal tunnel entirely devoid of medical foundation. Finally, the examiner explained that calluses are very common, that trimming calluses commonly result in an individual being unable to fully bear weight in activities such as running while the callus heals, but does not cause a permanent alteration in gait. Given the examiner's expertise, review of the claims file, and thorough rationale, the Board finds that the examiner's opinion is entitled to substantial probative weight. The Board acknowledges that the medical evidence includes August 2014 and May 2021 private opinions. The August 2014 private opinion reflects that a podiatrist opined that the Veteran had capsulitis during his active duty service and his current symptoms were related to that problem not being resolved 20 years ago. The May 2021 private opinion reflects that the podiatrist opined that the painful callus that the Veteran developed during service was from a plantar flexed metatarsal that was not diagnosed at initial presentation, and that his callus was from a prominent bone in the ball of his foot. The Board finds that these opinions are entitled to less significant probative weight. With respect to the August 2014 opinion, the opinion is conclusory and lacks a rationale supporting the opinion set forth therein. With respect to the May 2021 opinion, it again presents a deficient rationale because it fails to support the proposition that the Veteran was misdiagnosed during his active duty service. Additionally, neither opinion addresses the June 1990 report of medical history, where the Veteran denied foot trouble, and the report from the June 1990 separation examination, where his foot was determined to be normal by the examining military physician. In contrast, the April 2021 VA examiner set forth a thorough rationale and considered all of the relevant evidence. Moreover, the Veteran's contention that the podiatrist's opinion should be afforded greater probative weight because she is a podiatrist, and the VA examiner is not, is without merit because the VA examiner's review of the evidence was more complete, and the examiner's rationale was more thorough. Thus, the Board concludes that the medical evidence does not support a nexus between his disorders and his active duty service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity to his active duty service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide statements regarding the etiology of his right foot disorder, back disorder, right hip disorder, and neuropathy of the right lower extremity. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent statements regarding symptoms, these disorders are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Finally, with respect to his contention that his back disorder, right hip disorder, and neuropathy of the right lower extremity are secondary to his right foot disorder, the Board notes that it has found that service connection for his right foot disorder is not warranted. Given that secondary service connection cannot be granted as secondary to a nonservice-connected condition, secondary service connection for his back disorder, right hip disorder, and neuropathy of the right lower extremity is not warranted. See 38 C.F.R. § 3.310. By virtue of the foregoing, the Board concludes that service connection for a right foot disorder, a back disorder, a right hip disorder, and neuropathy of the right lower extremity is not warranted because the preponderance of the evidence is against the Veteran's claims. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel