Citation Nr: 21009341 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-36 859 DATE: February 22, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for a left foot disability, claimed as a post-crush injury, is granted. Service connection for a left foot disability, claimed as a post-crush injury is denied. Service connection for a right foot disability is denied. FINDINGS OF FACT 1. A January 2015 rating decision denied service connection for a left foot disability, after finding no current diagnosis of a disability. Although the Veteran was notified of the RO’s decision and his appellate rights in a January 2015 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 2. The evidence received since the final January 2015 rating decision includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection. 3. The preponderance of the evidence is against finding that a left foot disability began during active service or is otherwise related to an in-service injury or disease. 4. The Veteran’s right foot disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The January 2015 rating decision denying service connection for a left foot disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of service connection for a left foot disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156, 3.159, 20.302. 3. The criteria for service connection for left foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right foot disability due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to August 1976 and December 1977 to October 1981. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) issued in March 2017 and October 2017. The Veteran submitted a Notice of Disagreement (NOD) in January 2018 and a Statement of the Case (SOC) was issued in June 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in July 2018. The Veteran testified at a December 2020 hearing. A transcript of that hearing has been associated with the record. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for a left foot disability The Veteran’s claim of service connection for a left foot disability was originally denied in a January 2015 rating decision that found that there was no clinical diagnosis of a disability of record. The Veteran was notified of the decision and his appellate rights in a January 2015 letter, and the Veteran did not appeal the decision or submit new evidence and the January 2015 rating decision became final. In July 2016, the Veteran submitted an incomplete private disability benefits questionnaire that diagnosed the Veteran as having a moderately severe “soft tissue injury due to trauma” and degenerative traumatic arthritis in his left foot. In March 2017, the AOJ reopened the Veteran’s claim but continued its denial of the claim as there was no evidence of record that found a nexus between the Veteran’s alleged injury in service and his current disability. Since the last prior final decision in January 2015, additional evidence has been added to the record, as listed above. Specifically, the clinical diagnosis of a disability is material evidence relating to an unestablished fact necessary to substantiate the claim. Therefore, new and material evidence has been received since the final rating decision, and the prior final disallowance of the claim of service connection for a left foot disability is re-opened. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Factual Background Service treatment records show that the Veteran was in good health and physically fit. On February 10, 1981, the Veteran received treatment after he “fell on toe while playing [illegible].” There are no further records of treatment to his left toe or foot. In a July 1981 medical examination, the Veteran did not report any abnormalities on his feet, but reported other problems, such as scars, tattoos, blood pressure and vision. In October 1981, the month of his discharge, the Veteran certified that there had been no significant changes in his health nor that he had sustained any injuries since the last physical examination. Outside of the illegible portions, there is nothing to suggest that the records are incomplete. According to the Veteran’s military personnel records, it appears that he was stationed in Okinawa from October 1978 to June 1979—although that is not clear. Indeed, his DD Form 214 indicates that he had no foreign service. There is no record of the Veteran participating in training in Korea, or record of the Veteran boarding the USS Saipan. The Board notes that the USS Saipan had been decommissioned in and sold for scrapping in June 1976, a year before the Veteran’s service in the Marine Corps. After discharge, the Veteran applied for education benefits in July 1986 and reported that he was incarcerated for at least 18 months in October 1987. The Veteran again applied for educational benefits in November 1989. The Veteran, however, did not submit a claim of service connection for a left foot disability. In a questionnaire for the Social Security Administration, the Veteran reported that he stopped working in August 2014. He had worked as a line operator for a milk distributor from August 1992. The job required 8 hours of walking, standing, and climbing each day. The Veteran reported that he first visited a private medical practitioner in 2007 for an arthritis consultation although he only listed dates from 2014. There is no record, private or otherwise, of the Veteran receiving treatment for his feet prior to 2007. In November 2014, imaging showed advanced degenerative changes in the left midfoot and ankle. In June 2014, the Veteran stated that a tank rolled over his left foot when he was serving in the Marine Corps. He was not sure of the year. In July 2014, the Veteran submitted a claim of service connection for a left foot disability. In July 2016, the Veteran submitted an incomplete private disability benefits questionnaire that diagnosed the Veteran as having disabilities in his left foot as discussed above. The dates of the diagnoses were not given. The disability benefits questionnaire was initialed without a date of signature nor the printed name of the physician. A handwritten name of a “Dr. M. McKay” was written on the top of the questionnaire. The Veteran’s VA claims file was not reviewed, and a note read, “I have no medical information to review.” The Veteran’s medical history read that the Veteran was in the field in Korea, originally written as Okinawa, and that a tank stopped on the left foot in 1979. The private practitioner did not opine whether the Veteran’s diagnosed disability was caused by the alleged injury in service. In January 2017, the Veteran reported that he noticed right foot pain “last night.” Imaging studies showed moderate degenerative joint disease in the right foot. In March 2017, he reported chronic ulcer on his right foot and underwent right foot debridement. Part of the Veteran’s fifth metatarsal was removed. In May 2017, the Veteran reported that he developed cellulitis in his lower left extremity after sustaining blunt trauma in April 2017. In a January 2018 NOD, the Veteran stated that his unit was sent to Korea in May 1979 aboard the USS Saipan. He reported that a tank rolled up and stopped on his left foot during training. He stated that a lieutenant called to the gunner, and the tank was moved. The Veteran reported that he did not receive any treatment during or after training, and that he lost feeling on his left foot. The Veteran also contended that he developed arthritis in his left foot due to the injury and that his right foot disability was caused by his favoring his left foot. The Veteran stated that he had a bone fragment removed and that he was provided with orthopedic footwear. In a July 2018 Form 9, the Veteran reiterated that a tank ran over his foot and that his foot bones were fractured as a result. He stated that an officer seeing him hammering on the tank made the tank move. In a December 2020 hearing, the Veteran’s representative argued that the Veteran’s separation examination from the Marines was “largely illegible” and that it was not clear that the service treatment records were complete. The Veteran testified that he was shipped from Camp Hansen to Korea on the USS Saipan. He testified that he was the last person to get out of a troop carrier, and that after his left foot hit the ground, a tank rolled on top of his foot. A junior lieutenant was going to write him up for insubordination for not moving, but then saw that the Veteran’s foot was stuck and got the tank to move. The Veteran testified that he received no medical care for his left foot and that the only treatment he received was when his ex-wife dropped a jar of spaghetti sauce in Camp Lejeune. Due to his left foot injury, the Veteran could not get on any ladders or climb stairs. The left-foot problems, according to the Veteran, continued after he was discharged but he started receiving treatment from the VA Medical Center around 2012. The Veteran also believed that his right foot disability was caused by him favoring his left foot that was numb since the alleged injury. Between his discharge and 2012, the Veteran testified that he had treated his left foot on his own. 2. Service connection for a left foot disability, claimed as post-crush injury The Veteran contends that a tank rolled onto his left foot while training in Korea and that he had experienced problems with his left foot since. The Veteran’s representative also contends that the records are incomplete, and that the absence of evidence could not be used against the Veteran. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s current left foot disability is not causally related to his active service or any incident therein, to include the alleged injury caused by a tank stopping on his left foot. As discussed above, there is no medical evidence of record that the Veteran sustained an injury due to a tank having stopped on his left foot. The Veteran’s representative contends that the records could be incomplete, and in the alternative, largely illegible. A review of the record, however, shows that the service treatment records show treatment for a variety of ailments throughout the Veteran’s service. Although some portions of the records are illegible, they are legible enough to see whether the records pertain to the Veteran’s left foot. Even if they were illegible, the Veteran testified that he did not receive treatment on his left foot outside of a separate injury to his toe, not his foot, while stationed in Camp Lejeune. The Board also observes that there is a record of the Veteran’s left toe injury in Camp Lejeune, further suggesting that the record is complete. Similarly, although the Veteran’s representative contends that the separation medical examination is largely illegible, the Board notes that the portion relating to the Veteran’s feet is legible. Abnormality of the feet is marked “36” on the medical examination. The listed abnormalities were for number “39” (scars), “57” (blood pressure), and “71” (vision). The Veteran also signed the medical examination in October 1981, in the month of his discharge, that there had been no significant change in his health. Therefore, there is no reasonable possibility that are more legible copy of the Veteran’s service treatment records would aid in substantiating the Veteran’s claim. Combined with the lack of service treatment records while there is evidence of treatment for many other ailments, the Board finds that the Veteran’s testimony is contradicted by the contemporaneous medical evidence of record. In addition, there is no record of the Veteran serving overseas in Korea, even for a few days of training. The Veteran’s certificate of discharge shows that the Veteran had no foreign service. The Veteran also could not have been on the USS Saipan as it was decommissioned prior to the Veteran joining the Marine Corps. The Veteran’s testimony describing his symptoms is also contradicted by the record. Based on the documents the Veteran submitted to the Social Security Administration, the Veteran worked over a decade in a job requiring 8 hours a day of walking, standing, and climbing. These statements contradict the Veteran’s December 2020 testimony where he testified that he could not climb stairs or ladders. The Board also observes that the Veteran did not seek treatment for his left foot until 2007 for arthritic symptoms rather than the alleged symptoms of numbness since 1979. It is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). Given the inconsistencies and contradictions in the record, including the examples discussed above, the record does not establish that the Veteran sustained an injury in May 1979 from a tank stopping on his left foot. The Board is cognizant of the fact that the VA’s duty to assist also includes obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim of service connection for a left foot disability, the statutory duty to assist has not been triggered and that there is no need to obtain a medical examination or opinion to decide on the claim. Although there is competent evidence that the Veteran has a current disability, the Veteran did not establish that he suffered a left foot injury given the inconsistencies and contradictions in the record. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for left foot disability is denied. 3. Service connection for a right foot disability The Veteran contends that his right foot disability was caused by him favoring his left foot. The Veteran does not contend that his right foot disability was directly caused by his service. Currently the Veteran has no service-connected disabilities. At the outset, the Board notes that service connection on a secondary basis is permitted based on causation pursuant to 38 C.F.R. § 3.310(a) and aggravation pursuant to § 3.310(b). Allen v. Brown, 7 Vet. App. 439 (1995). Here, however, the Board is denying entitlement to service connection for left foot disability, and there is no evidence in the claims file to suggest that the Veteran’s right foot disability is either directly attributable to the service or was permanently aggravated by service. Consequently, the Board need not evaluate further the Veteran’s claim of entitlement to service connection for a right foot disability on a secondary basis as there is no service-connected disability that the right foot disability could reasonably be secondary to. The remaining question before the Board is whether the Veteran has a diagnosable right foot 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, although the Veteran has been diagnosed as haveing a right foot disability, the preponderance of the evidence is against a finding that the right foot disability began during active service, or is otherwise related to an in-service injury or disease. 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). The Veteran also does not contend otherwise. Thus, service connection for right foot disability, to include as secondary to a service-connected disability, is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.