Citation Nr: 21011280 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-09 949 DATE: March 1, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for bilateral foot disability, to include fallen arches/pes planus (flat feet), is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) show he sprained his right ankle in March 1976, but they are otherwise unremarkable for any complaints referable to this ankle after that injury for the remainder of his service, which was until September 1978, also show that his lower extremities were normal on physical examinations, and that he denied any foot trouble or impairment. 2. When he was examined for enlistment in the National Guard in December 1980, the Veteran was noted to have pre-existing moderate pes planus; the most probative (meaning most competent and credible) evidence of record is against a finding of aggravation of this pre-existing disability during or because of his service. 3. Moreover, the most probative evidence is against finding that he has a current right ankle disability and/or foot disability that is etiologically related or attributable to his service, including owing to any aggravation of the disability during or because of his service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria also are not met for entitlement to service connection for bilateral foot disability, claimed as fallen arches. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military duty from October 1975 to September 1978. He had subsequent service in the National Guard from December 1980 to October 1992. In support of these claims, the Veteran testified at a videoconference hearing in December 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record The Board subsequently, in February 2020, remanded these claims back to the Agency of Original Jurisdiction (AOJ) for necessary further development and consideration – including obtaining relevant records and a medical nexus opinion concerning the origin of these claimed disabilities, particularly in terms of whether related or attributable to the Veteran’s military service. There since has been the required compliance with the remand directives, certainly the acceptable substantial compliance, at least as concerning the claims for right ankle and foot disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board resultantly is now deciding the claims concerning the right ankle and feet. However, still more development of the right knee claim is required, so the Board is again remanding this other claim. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease, per se (such as degenerative joint disease, i.e., arthritis) according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). 1. Entitlement to service connection for a right ankle disability AND 2. Entitlement to service connection for bilateral foot disability, claimed as fallen arches/pes planus (flat feet) The Veteran’s STRs reflect that he sprained his right ankle in March 1976 and resultantly was provided crutches, a wrap, and a temporary profile limiting his duties while he recuperated. However, there are no subsequent complaints during the remainder of his service referable to his right ankle or feet, and he specifically denied any impairment involving these areas of his body on subsequent occasions during his service. The Veteran’s August 1977 Report of Medical History for periodic purposes reflects that he denied foot trouble (although he noted complaints of acne, cramps, a past venereal disease (VD), and depression or excessive worry). The Veteran’s August 1978 Report of Medical History for separation from service (Expiration of Term of Service (ETS)) reflects that he denied foot trouble (although he noted complaints referable to his left shoulder and insomnia/anxiety). The Veteran’s initial service ended in September 1978. The Veteran’s December 1980 Report of Medical Examination for his subsequent enlistment in the National Guard shows that his lower extremities were normal on examination, with the notable exception of his feet in that it was determined he had moderate pes planus. His corresponding Report of Medical History reflects that he denied foot trouble. This is the first notation of pes planus, and, since it was noted on entrance for that period of service, he had this pre-existing disability. The Veteran’s later September 1987 Report of Medical Examination for National Guard quadrennial purposes reflects normal lower extremities and feet. His corresponding Report of Medical History shows he reported that he was advised to get knee surgery, but this report is unremarkable for complaints referable to his right ankle or feet. The Veteran’s October 1991 Report of Medical Examination for National Guard quadrennial purposes continues to show normal lower extremities and feet. His corresponding Report of Medical History also shows he denied foot trouble. The Board also sees and considers it significant that, during his service, the Veteran sought treatment for several other complaints such as: sore throat (November 1975), sore throat, chills, headache (March 1976), sore throat (May 1977), a cut forefinger (June 1977), removal of stitches in the finger (June 1977), left shoulder strain (September 1977), dropping something on his big toe and getting a one-week profile (May 1978), acne (August 1978), stomach pains (August 1984), and a cut finger (January 1986). If the Veteran had been experiencing significant and/or chronic or recurring right ankle and/or foot complaints or symptms since his March 1976 right ankle sprain, it stands to reason there would have been some record or mention or documentation of that in his STRs – especially given the other occasions that he voiced complaints regarding a variety of then current ailments. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). However, not only were there no complaints, but he also specifically denied foot trouble, and the examinations of his right lower extremity, so including of his right ankle, especially, were gross unremarkable. Right Ankle Disability The Veteran contends that he hurt in right ankle while stationed at Fort Lee, Virginia, and that he was on crutches and a profile for the rest of his Advanced Individual Training (AIT). He contends that he was accepted into air assault school but was unable to go due to his right ankle impairment. The Board finds that any contention to continuity of symptoms since active service is less than credible given the record as a whole. The Board acknowledges the right ankle sprain in March 1976, but the Veteran nonetheless was able to continue serving on active duty for about another 1½ years, until September 1978, and then for even several more years after that in the National Guard with no notation of any lingering right ankle disability – certainly none interfering with his duties and responsibilities. Despite his representative’s indication that the Veteran had a “permanent” profile in service, the Veteran did not testify to such, and his STRs and service personnel records (SPRs) do not support the notion that he had a permanent profile due to a chronic (as opposed to merely acute and transitory) right ankle disability. His evaluation reports indicate he passed his physical fitness tests and are unremarkable for indication of a profile (e.g., May 1989, May 1990, and August 1991). The Veteran separated from the National Guard in 1992. There are no clinical records noting complaints referable to his right ankle in the next nine years. That long a lapse of time between his separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding this service-connection claim and tends to refute the notion that he has chronic right ankle disability attributable to his service or that dates back to his right ankle sprain in March 1976. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It is true the mere absence of evidence, such as during those many intervening years, does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records (such as treatment records) does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 (“Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.”). Moreover, although the Board cannot reject a claimant’s statements merely because he is an interested party, the claimant’s interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that “the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias....”). In this claim at hand, not only are there no records relevant to the right ankle for many ensuing years following that right ankle sprain in service, in March 1976, but consider also that, when since obtaining treatment, post service, the Veteran initially reported a post-service onset date of his symptoms and disability. That is, he did not express any belief or contention that the disability he now has in his right ankle is the result of spraining this ankle many years ago, while in service. A May 2001 VA clinical record shows the Veteran reported, instead, having been in a motor vehicle accident (MVA) the day prior. He recounted having been struck from the rear, and he presented with pain on the right side of his body – including, notably, in his right ankle. So, that was an intervening (“intercurrent”) right ankle injury that had nothing to do with his earlier right ankle sprain in service. The Veteran was again seen some five years later, in September 2006, and he reported the onset of his right ankle pain as in 2001, so the year of that MVA. A September 2006 X-ray showed an essentially normal right ankle, regardless. The claims file also includes a Disability Benefits Questionnaire (DBQ) dated in March 2020 in which the examiner opined that it is less likely than not the Veteran has a current right ankle disability causally related to his service – so including to his right ankle sprain in service. The examiner pointed out there was no evidence of traumatic arthritis according to the recent X-ray findings, and that the medical evidence does not support the Veteran’s contention of a relationship or correlation between any current right ankle disability and his service. Instead, it is more likely that his injury in service, in March 1976, was self-limiting without sequala (meaning without any residuals).   The Veteran is competent to state that he injured his right ankle in service, and his STRs support an injury (sprain) of this ankle in March 1976, so during his initial service. But, while he is also competent to attest to continuity of symptoms since his service, so including since that sprain, any contention of this is less than credible given the record as a whole conversely not tending to support this notion. Competency and credibility are not the same thing. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Any clinical opinion based on this supposed continuity of symptoms since service consequently lacks probative value as it is based on the Veteran’s self-reported and less than credible history. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his current right ankle disability, himself, including in terms of whether related or attributable to anything that occurred during his time in the military – so including to the sprain he sustained to this ankle during his initial service. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700  F.3d 1339, 1345  (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation).  In sum, the Veteran’s STRs are unremarkable for complaints referable to his right ankle after the March 1976 sprain, and he subsequently had normal lower extremity examinations, he has reported post-service complaints having an onset in 2001, including owing to an intervening (“intercurrent”) MVA, and the March 2020 DBQ opinion is against a finding of entitlement to service connection for any current right ankle disability, in part, because the right ankle sprain in service was self-limiting and is not shown to have resulted in any current residuals. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable, and this claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Fallen Arches/Pes Planus (Flat Feet) The Veteran testified during his December 2019 hearing before this Board that he had first had foot problems in basic training, which, if true, would have been in 1975 right after commencement of his initial service. He also testified that he complained about his feet but was threatened with being recycled, so he stopped complaining. He further testified that his doctor has told him that he probably had the fallen arches while on active duty in the military. But the “connection between what a physician said and the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence. Robinette v. Brown, 8 Vet. App. 69,77 (1995). In other words, there is no medical statement in the file to this effect reducing this reporting opinion or suggestion to in writing to, in turn, affirm this is his doctor’s actual belief. Moreover, while the Veteran stated that he did not further complain about his feet because he did not want to be recycled in basic training (meaning have to do it again), this does not explain why he would not complain about his feet in the remaining years of his active service or during the several years of additional service he subsequently had in the National Guard. August 1977 and August 1978 Reports of Medical History notably indicate the Veteran denied having any foot trouble (although he noted complaints of acne, cramps, a past VD, a left shoulder issue, and depression or excessive worry). His Reports of Medical Examination note normal feet upon evaluation. Moreover, he was specifically seen and given a temporary profile for an injured toe in May 1978; thus, as his foot was being examined, it seems reasonable that, if he had pes planus and/or complaints of fallen arches related to this, it would have been noted, but it clearly was not. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) Thus, the Board finds that the Veteran did not have foot complaints during his active service, and that any contention of chronic symptoms in service and/or continuity of symptoms since service lacks credibility. He separated from his initial service in September 1978. When he was reexamined for enlistment in the National Guard in December 1980, so about 2 years later, it was noted that he had moderate pes planus. Because his pes planus was noted on re-entrance into service in 1980, it is considered to be pre-existing. In this circumstance of notation of pre-existing disability, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, not VA, to establish aggravation of this disability during or by his service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010), citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Veteran’s September 1987 and October 1991 Reports of Medical Examination for quadrennial purposes reflect normal lower extremities and feet, and his Reports of Medical History indicate he denied any foot trouble. There also are no STRs noting complaints of fallen arches. Thus, aggravation is not conceded. In addition, any contention as to chronic symptoms in the National Guard lacks credibility. A June 2017 DBQ contains the opinion of the examiner that it is less likely than not the Veteran has pes planus causally related to his service. This examiner found no evidence in the active service STRs to support pes planus. A more recent March 2020 DBQ contains an additional opinion that it is less likely than not the Veteran has pes planus is causally related to his service. This additional examiner explained that, in general, the cause of pes planus is multifactorial, and that there is no objective evidence to support that the Veteran’s pes planus was incurred in service or aggravated by his service. The Veteran has not been shown to be competent to provide an etiology concerning his fallen arches/pes planus, to include especially linking any such disability to his service, whether by causation or alternatively by aggravation. Moreover, given the record as a whole, to include his STRs, any contention of chronic pain in service lacks credibility. For these reasons and bases, service connection for a foot disability, claimed as fallen arches or pes planus (flat feet), is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 3. Entitlement to service connection for a right knee disability is remanded. When the Veteran filed this claim for service connection in 2011, he reported having injured his right knee in June 1990 at Fort Campbell, Kentucky. However, he did not have National Guard active training in June 1990. His service in 1990, instead, was in September; there are no STRs noting complaints referable to his right knee in 1990. Thereafter, he did not have active training again until August 1991. In the interim (i.e., between September 1990 and August 1991), he was seen by a private clinician. April 1991 correspondence from Professional Orthopedic Consultants, P,C., shows the Veteran was seen by a private clinician in January 1991, that he had severe chondromalacia involving the medial femoral condyle of his right knee, which required arthroscopic surgical debridement. The correspondence is unremarkable for evidence that his treatment was due to a qualifying period of National Guard training. The Veteran testified during his December 2019 hearing before this Board that he actually injured his knee earlier, in 1984, while in Georgia at Hunter Army Airfield (HAAF); he has provided “buddy statements” attesting to that earlier trauma. The Veteran was on active duty for training from August 11 to 26, 1984. An August 23, 1984 STR shows he complained of swelling in his right knee, post-operative, and wanted to ensure it was alright for a run coming up. This notation is then scribbled over, and the next notation states that he complained of fluid on his right knee, was scheduled for a cartilage tear arthroscopy and meniscectomy in mid-October, and that the knee disability was “not service-related”. The Veteran additionally testified during his hearing before this Board that he did not find out until he was home (i.e., not on training) that he had ligament and cartilage damage. But this is not consistent with the August 1984 STR. The August 1984 STR is indicative that he already had been seen by clinicians prior to the August 23, 1984 STR and that he had either already had one surgery or that he already had been scheduled for an upcoming surgery. This tends to suggest that he had initially injured his knee prior to his August 1984 active duty for training. The Veteran’s September 1987 Report of Medical Examination for quadrennial purposes reflects normal lower extremities and feet. His corresponding Report of Medical History reflects that he reported that he was advised to get knee surgery. The Board does not deny that the Veteran had complaints referable to his right knee while on active duty for training in the National Guard in August 1984; however, a question remains as to whether the injury was sustained during that service or was permanently worsened by it. Thus, to assist in making this important determination, VA should attempt to obtain private records from 1984 through 1991, which may provide evidence as to the time of onset of his disability. The Board also sees that, in 1978, the Veteran reported having been seen at the VA Hospital in Montgomery, Alabama, for his injured toe. This suggest he was enrolled in the VA Healthcare System. VA consequently may have clinical records from 1984 to 1987 regarding his right knee. A March 2020 DBQ contains a medical nexus opinion against the claim and notes that the STRs in 1984 specifically state the knee injury was “not service-related”. That opinion notwithstanding, this claim is REMANDED for the following action: 1. Try and obtain the Veteran's VA treatment records for the period from January 1, 1984 through January 9, 1991. Document all efforts to obtain these additional records and appropriately notify the Veteran and his representative if unable to. 2. Also ask the Veteran to complete and return an authorization form (VA Form 21-4142) so that VA may obtain the records from treatment provider(s) for his right knee disability from January 1, 1984 through January 9, 1991. If he provides this necessary authorization, obtain these additional records. Document all requests for these records as well as all responses in the claims file and appropriately notify him and his representative if unable to obtain these records. 3. Thereafter, if additional records are obtained, obtain a supplemental clinical opinion to the March 2020 DBQ addressing all newly received, if any, records. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.