Citation Nr: 21006104 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-38 531 DATE: February 3, 2021 ORDER Service connection a left foot condition, including residuals of stress fracture left 3rd metatarsal, is denied. Service connection for a right foot condition is denied. FINDING OF FACT The Veteran’s healed fracture of the fibular sesamoid of the right foot and bilateral hallux rigidus/limitus and arthritis of the feet did not have their onset during service and are not related to any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot condition, including residuals of stress fracture left 3rd metatarsal, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service condition for right foot condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 2005 to May 2009 and is in receipt of the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. In May 2018, the Board remanded the claim for the RO for additional development. Service Connection 1. Service connection for a left foot condition, including residuals of stress fracture left 3rd metatarsal, is denied. 2. Service connection for a right foot condition is denied. The Veteran asserts that his current right and left foot disorders are related to his active service. He testified in December 2017 that he suffered an injury to his left foot in boot camp during a hike when he stepped on a rock. He stated that his left foot gave him problems throughout service; however, he self-remedied by doubling-up in socks and tying his boots tighter to make it more secure and prevent any pain. He stated that he also approached his corpsman whenever his foot swelled, and that the corpsman would issue Motrin for the swelling and recommend propping it up at night. The Veteran testified that as a Marine infantryman, he could not complain because it was frowned upon, but his left foot still gave him issues to the present day. Concerning his right foot, the Veteran testified that during a long hike in California, up and down hills, he was carrying the barrel of the gun system when he stepped on a rock and injured his foot. He stated that it felt like his right big toe was jammed, but it did not prevent him from doing anything. He mentioned it to his corpsman who reportedly told him that it would get better. However, the Veteran stated that it continued to bother him during service, and whenever he was in a lot of pain he would complain to his corpsman and was given Motrin. The Veteran stated that after his separation from service he first sought treatment for his right foot in 2015. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), such as arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b). When chronicity or continuity of symptoms is shown, direct evidence of a medical nexus or causal link to service is not required to establish service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Rather, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Further, it appears that the Veteran’s service treatment records may not be complete. When STRs are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit-of-the-doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); see also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran’s service treatment records show that he suffered a nondisplaced fracture of the distal diaphysis of the third metatarsal of the left foot in July 2005. On separation examination in February 2009, he denied any foot trouble or impaired use of the feet. Shortly after his separation from service in May 2009, the Veteran submitted a claim for service connection for several conditions, including of the back and knees, but not his feet. He was afforded a VA examination in July 2009, at which time he made no complaints pertaining to his feet. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. There was no edema, disturbed circulation, weakness, atrophy of the musculature, tenderness, heat, redness or signs of deformity. The Veteran had active motion of his metatarsophalangeal joint of the great toes, bilaterally. He was found not to have hallux valgus or hallux rigidus. Four years later, in conjunction with his claim for service connection for a bilateral foot disorder, the Veteran underwent another VA examination in September 2013. He reported that his foot symptoms started in 2005 and that after four years of infantry training and the weight he had to carry, his feet had been in bad condition. Clinical evaluation of his feet was normal. The examiner specifically reported that the Veteran did not have hallux rigidus. Lateral and oblique views of the Veteran’s left and right foot were performed, showing “no evidence for fracture or other significant bone, joint or soft tissue abnormality.” The examiner found that “the visualized soft tissues and bony structures are radiographically within normal limits.” The examiner concluded that the Veteran had no pathology to render a diagnosis of the right foot and no residuals from the in-service stress fracture of his left foot, no abnormalities on “x-ray 9/13/13,” and no findings on physical examination to render a diagnosis. The Veteran was seen by a private podiatrist in May 2015 at which time he gave a history of right great toe pain for six years. Following x-rays, the diagnosis was fracture fibular sesamoid and hallux limitus of the right foot. On follow-up in June 2015, the examiner noted that x-rays showed a fracture of the fibular sesamoid with irregular fracture patterns with some improved healing noted across the fracture line, as well as hallux rigidus. The Veteran sought treatment for bilateral toe pain in January 2018 and was diagnosed as having bilateral hallux rigidus. X-rays showed a healed fracture of the fibular sesamoid of the right foot, joint space narrowing of the first MTP joints bilaterally, and a dorsal spur of the first metatarsal head of the left foot. The Veteran was afforded a VA examination of his feet in October 2019. The examiner diagnosed bilateral hallux rigidus and degenerative arthritis of both feet. The Veteran reported on onset of his foot symptoms, to include swelling, during basic training while on 10-12 mile cross-country maneuver in full gear. The examiner noted the in-service diagnosis of a nondisplaced stress fracture of distal diaphysis of the third metatarsal of the left foot; the Veteran’s denial of foot trouble on separation examination in February 2009; the post-service x-rays of the feet in September 2013 showing no evidence for fracture or other significant bone, joint or soft tissue abnormality; and the post-service treatment for the right foot in 2015 and for the left foot in 2018. The VA examiner opined it was less likely than not that the Veteran’s current right and left foot conditions were incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s in-service third toe non-displace distal diaphysis stress fracture was acute only, that there was no evidence of chronicity of care, and that a nexus had not been established. The examiner stated that the stress fracture was likely caused while in basic training by repetitive duties involving long hikes while carrying heavy artillery; however, it was acute and healed without residuals. Concerning the Veteran’s right foot, the examiner stated that “right was acute only,” that there was no evidence of chronicity of care, and that a nexus had not been established. He explained that since the right and left foot X-ray was normal in September 2013, it was likely that the Veteran injured his right big toe during civilian life between 2013 and 2015 “where sesamoid fracture was found and then healed by 2018.” The examiner concluded that the acute sesamoid fracture, hallux ridigus/limitus and arthritis were not related to service. For the following reasons, the Board finds that service connection for right and left foot conditions is not established. As noted above, the Veteran’s left foot injury is documented in his service treatment records. The Board finds the Veteran’s statement that he injured his right foot during service during a march in California to be credible. Further, the Board finds the Veteran’s statements that he continued to experience bilateral foot symptoms during service and was given Motrin by his corpsman to be credible, even though this is not documented in his service treatment records. See 38 U.S.C. § 1154(b) (providing that when an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). However, the Board does not find the Veteran’s statements that he experienced continuing bilateral foot symptoms, including pain and swelling, ever since service to be credible. On separation examination in February 2009, he specifically denied any foot trouble or impaired use of his feet. He made no complaints pertaining to his feet on post-service VA examination in July 2009, and examination of his feet at that time was normal with no signs of abnormal weight bearing or breakdown, callosities, any unusual shoe wear pattern, edema, disturbed circulation, weakness, atrophy of the musculature, tenderness, heat, redness or signs of deformity. He had active motion of his metatarsophalangeal joint of the great toes, bilaterally, and was specifically found not to have hallux rigidus. The Board does not find it plausible that the Veteran would not have reported any foot symptoms on VA examination in July 2009 when his feet were specifically examined, to include range of motion of his great toes. In June 2009, just one month after his separation from service, the Veteran submitted a claim for service connection for several conditions, including of the back and knees. He did not file a claim for a foot condition, or mention his feet at this time. Based on this claim, and his December 2017 hearing testimony that he had bilateral foot symptoms including pain and swelling ever since service, the Board finds it implausible he would not have mentioned his feet at the time he filed this claim or at the time of his July 2009 VA examination. Further, when the Veteran was examined for right foot symptoms in May 2015, he made no mention of any left foot symptoms. Similarly, the Board does not find it plausible that the Veteran would not have reported long-term left foot symptoms, when he reported right foot symptoms. Further, the October 2019 VA examiner concluded that the Veteran’s right and left foot disorders were not related to service, to include his in-service injuries and duties which involved long marches carrying heavy gear. While the examiner noted a lack of continuity of treatment in rendering the opinions, this does not diminish the probative value of the opinion. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) ("regulations require a continuity of symptomatology, not continuity of treatment"). Importantly, the Board has determined that the Veteran’s testimony concerning a continuity of foot symptoms ever since service lacks credibility, which is in line with the examiner’s notation of a lack of continuity of treatment. The examiner’s opinion was also underpinned by additional rationale, including the Veteran’s denial of foot trouble on separation examination in February 2009 and the normal post-service x-rays of the feet in September 2013, with abnormalities on x-rays not shown until later in 2015 and 2018. The opinion represents the informed conclusion of a medical professional based on review of the Veteran's medical history, and is supported by a specific explanation that is consistent with and accounts for the relevant evidence of record. Thus, the Board finds that the VA examiner's opinion carries significant weight. While the Veteran asserts that his current right and left foot disorders are related to service, as a lay person in the medical field, he does not have the medical expertise to provide a competent opinion on the issue, as this is not a relationship that can be readily observed through the senses alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). His opinion is outweighed by the October 2019 VA medical opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In short, the evidence shows that the Veteran's healed fracture of the fibular sesamoid of the right foot and bilateral hallux rigidus/limitus and arthritis of the feet did not develop until several years following service separation, consistent with the VA examiner's finding. Because the evidence does not show that arthritis of the feet manifested during service or within one year of service separation, service connection is not warranted on a presumptive basis. See 38 C.F.R. Further,§§ 3.307, 3.309. Further, there is no competent and credible evidence of record showing that the Veteran’s current foot disorders are related to any incident of service. Rather, the October 2019 VA examiner reached a contrary conclusion. Accordingly, the preponderance of the evidence weighs against a finding that the Veteran's right and left foot disabilities began during active service or are otherwise related to an in-service injury or disease. See 38 C.F.R. § 3.303(a). Consequently, the benefit-of-the-doubt rule does not apply, and service connection is denied. See 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gonzalez, Damian 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.