Citation Nr: 21008867 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-23 643 DATE: February 18, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for left foot disability, to include residuals of a left foot laceration with scar, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that any back disability is etiologically related to service or any disease, injury, or event in service. 2. The preponderance of the evidence is against finding that any left foot disability or left foot scar is etiologically related to service or any disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for a left foot disability, to include residuals of a left foot laceration with scar, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to July 1966 and from July 1970 to July 1973. In November 2019, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within one year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 1. Entitlement to service connection for a back disability The Veteran asserts that a back disability is the result service. During the December 2014 Board hearing, the Veteran testified that he injured his back in service while lifting heavy pots. The service medical records show that the Veteran was treated for lower back pain in February 1973 and April 1973. At a June 1966 separation examination, a July 1970 induction examination, and a June 1973 separation examination the Veteran denied any spine or musculoskeletal pain and a spine examination was normal. In a January 1991 Veterans Application for Compensation, the Veteran indicated that he injured his back at work in November 1985. The Veteran indicated on the form that he was a mechanic, had worked for 12 months, and missed two weeks of work due to the back injury. A May 2013 VA examination diagnosed degenerative changes of the lumbar spine. The examiner noted that the Veteran had been treated in service for lumbar strain and that no back problems were noted at the time of separation from service. The examiner opined that the current back disability was consistent with aging and was not a chronic back condition. In October 2016, the Veteran reported back pain after a car accident. X-rays showed “anterior osteophyte formation [and] sclerosis of posterior elements consistent with facet arthropathy.” A September 2020 VA examination diagnosed degenerative joint disease (DJD) of the lumbosacral spine. After a review of the service medical records, an in-person examination, and a complete history, the VA examiner opined that a back disability was less likely than not incurred in or caused by service. The examiner stated that the in-service back complaints were diagnosed as lumbar strains which are muscle conditions. The examiner stated that diagnosed facet hypertrophy is an age-related disability which was not causally related to lumbar spine strain. The examiner also opined that continuity of care was not established as there was no evaluation, diagnosis, or treatment for a back disability until nearly 43 years after separation from service. The Board finds that service connection on a presumptive basis for a back disability is not warranted. As the evidence is negative for signs, symptoms, or diagnoses of arthritis to a compensable level during the Veteran's first year following service separation, service connection cannot be established on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Board also finds that the preponderance of the evidence is against a finding that any current back disability was the result of service. The Board notes that it is not enough to show a current disability and an injury in service. There must also be evidence of a relationship between the in-service event and the current disability. The Board finds that there the preponderance of the evidence is against a finding of any such link. No medical professional, to include the Veteran’s own providers, has opined that a current back disability is related to service. In fact, two separate VA examiners opined that a current back disability was age related. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide an opinion on the etiology of a back disability as the opinion requires medical training which he is not shown to possess. Consequently, the Board gives more probative weight to the competent medical evidence. Specifically, the Board finds the opinion of the September 2020 VA examiner highly probative as the examiner reviewed the claims file, noted the Veteran’s reports, considered the Veteran’s medical history, conducted an in-person examination, and provided an opinion based on medical training, knowledge, and expertise. Therefore, as there is no competent evidence linking a currently diagnosed back disability to service, the claim must be denied on a direct basis. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left foot disability to include residuals of a left foot laceration with scarring The Veteran asserts that residuals of a left foot laceration with scar is related to service. Specifically, in December 2014, the Veteran testified that a few weeks prior to separation from service, he cut his left foot while using a lawnmower. He testified that the cut was packed with gauze, sutured, and later the gauze was removed. However, he stated that some of the gauze was left behind in the left foot. A May 1965 service medical record shows that the Veteran complained of left wrist pain which was exacerbated while handling a power lawnmower. In June 1965, the Veteran “fell and hit [the right] lower leg.” Tenderness, swelling, and a small abrasion were noted. In April 1973, weeks before separation from service, the Veteran was treated in an emergency room for a left hand injury. The record shows that a four-centimeter piece of wood was removed from the left hand in dorsal space between the thumb and index finger. The injury was packed with “iodoform gauze” and covered with a dressing. During an August 1966 separation examination and a July 1970 induction examination, the Veteran denied any foot trouble. A June 1973 separation examination shows that the Veteran denied any lower extremity issues and an examination of the lower extremities was normal. An August 2019 VA examination diagnosed bilateral pes planus, plantar fasciitis, bilateral first toe degenerative joint disease, and a left foot scar. The examiner opined that the claimed left foot disabilities were less likely than not incurred in or caused by any injury, event, or illness in service. The examiner noted that there was no documentation in the service medical records for “evaluation, diagnosis, or treatment for a bilateral foot condition to include bilateral pes planus, bilateral planter fasciitis, bilateral first toe DJD, or left dorsal foot laceration during active military service.” The Board finds that the preponderance of the evidence is against a finding that any left foot disability is the result of service. The Board finds that there is no corroborating evidence to support the claim of an in-service injury of the left foot. The Veteran sought medical treatment on numerous occasions and complained of a variety of ailments, including a left hand injury only weeks prior to separation from service. The Board finds that if the Veteran had a left foot injury or left foot pain, it is reasonable to assume that he would have reported a left foot issue and that it would have been noted while receiving medical care. There were no left foot abnormalities, to include an injury, laceration, scars, or pain, noted during an examination at separation from service. The Board finds the contemporaneous service medical records more reliable, and therefore more probative, than claims and statements made by the Veteran several years after the fact and in conjunction with a claim for compensation. The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest, bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995), Madden v. Gober, 125 F.3d 1477 (1997). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). The probative evidence of record does not show an in-service left foot injury. Because there was no left foot injury, disease, or symptoms shown during service, there is nothing in service to which any current left foot disability could be related. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Even if the Veteran’s lay statements were found to be evidence of a left foot injury in service, the Board finds that the competent evidence does not show that any current left foot disability is related to the claimed injury during service. The Board finds that the August 2019 VA examination is the most persuasive evidence in this case and that examiner opined that it was less likely that any current left foot disability was related to service. While the August 2019 VA examination found a left foot scar, there is no evidence in the service medical records of any left foot laceration to which a current scar could be related. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim for service connection for a left foot disability. to include residuals of a left foot laceration with scar, must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.