Citation Nr: 21009015 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-39 687 DATE: February 18, 2021 ORDER Entitlement to service connection for a right knee disability, including gout, is denied. Entitlement to service connection for a right foot disability is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability, to include gout, did not begin during active duty service, was not continuous since active duty service, and did not manifest to 10 percent within one year since the period of service. 2. Resolving reasonable doubt in the Veteran’s favor, his right foot disability is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability, to include gout, have not been met. 38 U.S.C. §§ 101(24), 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from June 1986 to September 1986 and November 1990 to June 1991. He also served in the Air Force Reserves, with active duty for training (ACDUTRA) during various periods from July 1987 to May 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018 and October 2019, at which time the issues currently on appeal were remanded for additional development. The Board notes that the Veteran testified before a Veterans Law Judge (VLJ) at a hearing in April 2018. A transcript of that hearing has been associated with the claims file. The VLJ who held the April 2018 hearing is no longer employed at the Board. In a December 2020 letter, the Board notified the Veteran that he had the right to testify at a new hearing before another VLJ who will participate in the final determination of his claim. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. The Veteran did not respond within 30 days of that letter; therefore, the Board considers the opportunity for a new hearing declined. As such, the Board will proceed with adjudication of the issues on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309, such as arthritis, under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is a continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The term “active service” includes active duty; any period of ACDUTRA in which the individual concerned was disabled or died from a disease or injury incurred in the line of duty; and, any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24). Right Knee Disability The Veteran asserts that his right knee disability is related to his active service. The Veteran’s service treatment records (STRs) from his periods of active duty and ACDUTRA do not reveal any complaint of, treatment for, or diagnosis of a right knee disability. Post-service treatment records reveal that in August 2005, the Veteran was documented as reporting occasional right knee swelling and excused from the running portion of his fitness test. In an August 2007 medical summary, the Veteran was assessed as having a diagnosis of gout. Additionally, in August 2009, the Veteran was again excused from the running portion of his fitness test due to right lower extremity tenderness and right knee pain. In an April 2018 statement, the Veteran’s private physician, Dr. K.M., reported that the Veteran had a diagnosis of gout in his right knee. During the April 2018 Board hearing, the Veteran testified that he went to his doctor for complaints about his knee in 2007, at which time he was informed that he had gout. He further testified that his right knee had since bothered him. In December 2019, the Veteran was afforded a VA examination for non-degenerative arthritis. At that time, the Veteran reported right knee issues that were manifested by pain on a daily basis, walking with a limp, and mild to moderate right knee pain with regular weight bearing (e.g. walking to and from his car). The VA examiner opined that the Veteran’s gout was less likely than not incurred in or caused by service because there was no indication that the right knee complaints, from 2007, stemmed from his active duty years, namely from 1986 to 1990. In a September 2020 addendum opinion, the December 2019 VA examiner again confirmed her opinion that the Veteran’s gout was less likely than not incurred in or caused by his active service. The VA examiner reasoned that the Veteran’s gout did not begin in 2007 during his two-week period of active service because gout was an insidious disease (i.e., has a gradual onset), thus it more than likely began between the periods of active service from 1990 to 2007. The Board finds that the December 2019 VA examination and September 2020 VA addendum medical opinion, combined, are adequate for adjudication purposes. In that regard, the VA examiner addressed the relevant medical evidence and provided a thorough rationale to conclude that the characteristics of the onset of gout did not align with the Veteran’s contentions. Moreover, there is no medical evidence in contrast of the September 2020 VA addendum medical opinion. The Board notes that the Veteran’s documented periods of active service account for a total of 555 non-consecutive days, or little over one and a half years, of his 25-year military history, from June 1986 to March 2011. Additionally, the Board notes that a diagnosis of and etiological opinion for gout, in general, and in connection to the Veteran’s intermittent periods of active service in particular, are a complex determination that requires medical expertise and testing, and thus outside of the common knowledge of a layperson. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Board finds that the Veteran is not competent to provide an etiological opinion regarding the diagnosis of gout in his right knee. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board acknowledges the Veteran’s statements pertaining to a continuity of symptomatology of his gout. However, the Board notes that the chronic disease presumption and continuity of symptomatology does not apply to periods of ACDUTRA or active duty for less than 90 continuous days. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Therefore, due to the exclusion of the periods of ACDUTRA, the Veteran’s symptoms would have had to incur during his periods of active duty, from June 1986 to September 1986 and November 1990 to June 1991, and persist since that time. The Board finds that the weight of the evidence, both lay and medical, does not support that assertion. In that regard, the evidence of record reveals that the Veteran’s first documented complaint of right knee pain was August 2005, nearly 14 years after his last period of active duty. Additionally, the Veteran has not otherwise asserted, nor has the medical evidence shown, him to have symptoms prior to that time. Based on the foregoing, the Board finds that the December 2019 VA medical examination and September 2020 VA addendum medical opinion are the most probative competent evidence of record. Accordingly, as the preponderance of the evidence is against the claim, entitlement to service connection for a right knee disability, to include gout, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Foot Disability The Veteran asserts that his right foot disability is related to active service. Specifically, the Veteran asserts that his right foot was injured while moving pallets as a part of his duties during a period of ACDUTRA in November 2007. The Veteran’s available STRs do not show complaints of, treatment for, or diagnosis of a right foot disability. In a September 2010 statement, the Veteran’s private physician, Dr. K.M., reported that the Veteran was seen for plantar fasciitis in his right heel. In an October 2010 statement, the Veteran stated that during his November 2007 annual tour he injured his right foot, and, thereafter, was seen at a clinic where he was diagnosed with plantar fasciitis and prescribed a strong pain killer. The Veteran also stated that his right foot had bothered him and progressively worsened since that time. In an October 2016 statement, the Veteran, through his representative, asserted that the training records from his right foot injury were missing. In an April 2018 statement, the Veteran’s private physician, Dr. K.M., again stated that the Veteran had a diagnosis of right plantar fasciitis. In December 2019, the Veteran was afforded a VA examination for foot conditions. At that time, the Veteran asserted that he had pain in his right foot in the morning or after repetitive use. However, the VA examiner found that there were no findings, signs, or symptoms to support a diagnosis. The VA examiner reasoned that although the record supported a 2007 diagnosis of plantar fasciitis, there was a lack of continuity of complaints or treatment since that time, which put into question the chronicity of the Veteran’s condition. The Board finds that the December 2019 VA examination is inadequate for adjudication purposes. In that regard, the VA examiner failed to incorporate and discuss Dr. K.M.’s September 2010 and April 2018 statements, regarding complaints and diagnosis of plantar fasciitis, as well as the Veteran’s lay statements that his symptoms had continued, and worsened, since his 2007 injury. As the December 2019 opinion is inadequate, it cannot serve as the basis for denial. The Board initially acknowledges the Veteran’s statements, pertaining to his missing STRs, and notes that when STRs are lost or missing, the VA has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran’s medical records have been destroyed.” Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Board notes that the record contains an authorization for active duty training/tour that corroborates that the Veteran was stationed in South Carolina in November 2007. As such, the Board concedes that the Veteran’s right foot injury occurred during that time. Additionally, the Board notes that the Veteran is competent to report the observable symptoms of his plantar fasciitis. Jandreau v. Nicholson, 492 1372 (Fed. Cir. 2007). Moreover, the Board finds the Veteran credible in that respect. The Board also notes that lay 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 later supports a diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Board finds that the Veteran has competently and credibly reported the symptoms of his plantar fasciitis. In sum, the Board has conceded that the Veteran sustained a right foot injury during his active service. The Veteran has competently and credibly reported that he first experienced symptoms during his active service and that those symptoms have continued since that time. While there is a VA medical opinion of record against the claim, that opinion is inadequate. Furthermore, the Veteran has a current diagnosis of right plantar fasciitis. As such, the Board finds that the evidence for and against the claim of entitlement to service connection for a right foot disability is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for a right foot disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate 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.