Citation Nr: 21006851 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-05 770A DATE: February 5, 2021 ORDER Entitlement to service connection for a bilateral foot disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral foot disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to March 1968. This matter is on appeal from a December 2016 rating decision. In June 2020, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The issues on appeal were remanded by the Board in July 2020 for further development. A review of the claims folder reflects that the RO has complied with the July 2020 Board remand. Entitlement to service connection for a bilateral foot disorder The Veteran contends that he has a bilateral foot disability which is due to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of flat feet, hammertoes and hallux valgus and evidence shows that the Veteran complained of foot pain in service, the preponderance of the evidence weighs against finding that the Veteran’s present foot disorders are related to an in-service injury, event, or disease. Service treatment records include May and June 1966 treatment notes which note a sore achilles and sore feet. The Veteran was prescribed hot soaks and wintergreen. The Veteran’s February 1968 report of medical examination for separation from service includes a check mark indicating an abnormality of the feet, and a note that remarks on a left foot disorder, however this was crossed out and “wrong patient” was written down with the examiner’s signature. No foot disorder was noted in the summary of defects and diagnoses section of the report. The Veteran’s February 1968 report of medical history includes his report that he did not have nor had he ever had foot trouble. VA treatment records show the Veteran was not diagnosed with a foot disability until 2005, following a diagnosis for diabetes mellitus, type II. The Veteran testified before the Board in a June 2020 videoconference hearing. At his hearing, the Veteran testified that he went to a clinic in 1966 due to pain in his feet during basic training. The Veteran stated that in May 1966 he was told that he had a sore achilles and that he was told to finish his training in low quarter shoes. The Veteran testified that he went to the same dispensary in June 1966 because his feet continued to bother him, and he was told to use hot soaks and wintergreen. He stated that he still had sore feet at the time of separation from service. The Veteran stated that he continued to have problems after service and as a consequence he sought treatment from podiatry in 2005. The Veteran was afforded an examination in November 2020. During the examination, the Veteran stated that he was diagnosed with flat feet in basic training and that his flat feet had worsened overtime. He reported that he attended the podiatry clinic every six months since the onset of diabetes mellitus type 2 in February 2004. The Veteran was found to have flat foot, hammer toes and hallux valgus. Following physical examination and review of the claims file, the examiner found that it was less likely than not that a foot disorder was incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that entrance and separation examination were silent for foot conditions. It was noted that the Veteran was seen for sore feet on one occasion in 1966 and no diagnosis was provided. The examiner stated that there were no treatment records from 1969 to 2001 and that the Veteran was diagnosed with diabetes in 2004 which was the leading cause of foot problems. It was noted that the Veteran was diagnosed with hallux valgus and hammertoes in 2005, and pes planus in 2006. The examiner further stated that diabetes mellitus, type II was a risk factor for the development of foot deformities and that tight-fitting shoes, arthritis and heredity and that hammertoes were a secondary development of hallux valgus. The examiner stated that risk factors for the development of flat feet included, diabetes, arthritis and aging. The examiner stated the Veteran’s foot conditions were more likely due to the onset of diabetes mellitus type II. The examiner cited information on hammertoe, hallux valgus and flat feet from the Mayo Foundation for Medical Education and Research in support of her conclusion. The Board finds that the preponderance of the evidence weighs against the Veteran’s claim. In so finding, the Board finds significant the fact that the evidence demonstrates that the Veteran sought treatment for his feet only after his diabetes diagnosis and there is no evidence of treatment for a foot disorder between the Veteran’s discharge and that diagnosis. While a lack of evidence alone is usually not enough to deny a claim for benefits, this evidence can be weighed in light of other evidence See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, this is considered alongside the medical findings of the November 2020 VA examiner who noted that it was more likely that the Veteran’s foot disorders were due to diabetes mellitus, type II. Of note, the examiner is shown to have found that the Veteran is not shown to have a foot disorder on separation from service and that he complained of a foot problem once, instead of twice, in service. While the Board noted a foot abnormality in its July 2020 Remand, and a foot abnormality is checked in the Veteran’s separation report of medical examination, as noted above, a notation was crossed out in the Veteran’s separation examination and “wrong patient” was written in that note. Thus, finding that the report of medical examination was silent as to a foot disorder, in light of the crossed out notation and the lack of any notes on a foot disorder in the exam, alongside a negative history for a foot disorder, is a plausible interpretation of the record. Moreover, given that the examiner found a different likely cause for the Veteran’s foot disorder, concluded that the Veteran’s report of medical examination for separation did not note a foot disorder, and discussed foot complaints in service, a finding of one, rather than two, in-service complaints of foot pain does not materially affect the probative value of the examiner’s findings. The examiner does note the Veteran’s in-service foot treatment as well as his lay statements in support of his claim but nonetheless does not relate the Veteran’s present foot disorder to service, instead relating such to diabetes mellitus, type II. Thus, even if the Board were to concede that the Veteran’s separation examination was to be read as showing a foot disorder in service, the medical evidence is against a nexus between an in-service foot disorder and service, instead demonstrating that the foot disorder is related to an unrelated disorder that began years later and is not service connected. While the Veteran is competent to report having experienced symptoms of foot pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a presently diagnosed foot disorder. The issue is medically complex, as it requires medical expertise and the Veteran is not shown to have the expertise to determine whether his foot symptoms are from service, or due to diabetes mellitus, type II. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds that the probative medical evidence weighs against a finding that the Veteran’s present foot disorders are related to his service. As the evidence weighs against the Veteran’s claim for service connection for a bilateral foot disorder, his claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.