Citation Nr: 21011506 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-11 770 DATE: March 2, 2021 ORDER Entitlement to service connection for a left foot disorder is denied. FINDING OF FACT The preponderance of the evidence supports the Veteran’s left foot disorder did not manifest in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.313 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1970 to May 1972, with subsequent Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Veteran presented testimony before the undersigned Veterans Law Judge in an April 2018 videoconference hearing. 1. Entitlement to service connection for a left foot disorder is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Plantar Fasciitis and pes planus are not considered by VA to be “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleged in the April 2018 hearing that his left foot condition stemmed from fracturing his foot on the first day of training. The Veteran stated that he had previously fractured the foot while playing basketball prior to service and that he had re-fractured the foot while in service. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). According to the December 2020 VA examination, the Veteran is diagnosed with pes planus and plantar fasciitis. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). October 1970 STRs indicated that the Veteran sought treatment for a twisted left foot. He Veteran reported an old fracture of the fifth metatarsal. The examiner noted tenderness of the fracture site and found that a new stress fracture could not be ruled out. The Veteran’s May 1972 active duty separation examination also noted occasional foot pain, but there was a normal clinical evaluation of the feet. Third, the Board finds that the evidence of record does not support a finding that the left foot condition is related to active service. A July 1972 VA examination was provided. The Veteran stated that his left foot ached with prolonged periods of standing and that it bothered him when the weather was damp. The examiner noted that the Veteran did not exhibit acute pain or distress and did not have a notable limp. Examination of the foot revealed that there was no swelling, deformities, or abnormalities. There was no tenderness noted and he had full range of motion. The examiner determined that the bony structure of the foot was normal in texture and density without evidence of an old fracture. X-ray results noted there was no fracture of the left foot. Post-active duty discharge, reserve service records document a prior fracture, but indicated no current symptoms. In a December 1986 reserve report of medical examination, there was normal clinical evaluation of the feet. In an accompanying report of medical history, the Veteran denied foot trouble. An April 1990 reserve duty STR also noted the Veteran’s metatarsal fracture. In a report of medical history, the Veteran denied foot trouble. A December 2010 VA examination was obtained. Upon examination, there was no evidence of painful motion, swelling, instability, weakness. There was tenderness of the plantar fascia. X-rays were reviewed and were normal. The examiner opined that if the Veteran had suffered a fracture of the left metatarsal in service, the fracture healed successfully as demonstrated by the December 2010 radiographs. In a July 2018 Board decision, a new VA examination was requested as the Veteran had indicated that his left foot condition had existed prior to service, though the condition had not been noted on the entrance examination. A VA opinion was provided in July 2019. The examiner determined that it was not clear and unmistakable that the Veteran’s foot condition preexisted service. The examiner noted that there was no medical documentation of the foot fracture prior to service. The examiner acknowledged the Veteran’s brother’s correspondence discussing the pre-service foot fracture and that it had been noted on the Veteran’s separation examination but stated that the Veteran’s July 1972 x-ray had been normal and that if there had been a pre-service fracture, there would have been evidence of callus formation on the 1972 x-ray. As there was lack of documentation and x-ray evidence, the examiner determined that there was no clear and unmistakable evidence of a pre-service foot fracture. In a January 2020 decision, the Board determined that remand was required as the examiner had failed to address the Veteran’s diagnosed plantar fasciitis. The Veteran was provided with another VA examination in February 2020. The examiner determined that the Veteran’s left foot condition was less likely than not related to service as there was no evidence of plantar fasciitis, pes planus or residuals of a metatarsal fracture in the STRs or within one year of discharge. The examiner also noted that the Veteran’s exit examination was normal regarding the left foot. This examination was deemed inadequate in an August 2020 Board decision as the examiner did not provide a sufficient rationale or medical evidence and failed to address certain pieces of evidence as directed by the prior Board remand. As such, the Board affords this examination less probative weight. The Veteran was provided with a final VA examination in December 2020. The examiner determined that the Veteran’s left foot condition was less likely than not related to military service. The examiner noted that there was no evidence of complaints or treatment for the left foot fracture since the initial October 1970 injury in the STRs. The examiner acknowledged the Veteran’s complaints of left foot pain in July 1972 but noted that the symptoms were acute. The examiner noted that the July 1972 x-ray of the Veteran’s foot was normal and showed no radiographic evidence of any residuals of the fracture. The examiner stated that this suggested that the fracture had healed completely with no evidence of a recurrent left foot fracture. The examiner noted that the Veteran was not diagnosed with pes planus or plantar fasciitis until 2010, which was 38 years since separation from active duty service. As such, the examiner determined that nexus was unlikely. The Board finds this opinion highly probative evidence as it is provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and is supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board acknowledges at the outset that there is question as to whether the Veteran had a foot condition that preexisted service. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In this case, the foot condition was not noted at entry. A four-inch scar was noted on the left foot at entry, but no other abnormalities of the left foot were documented on the entrance examination. While the Veteran claimed to have fractured his foot prior to service, and his brother attested to this, there is no medical evidence of record supporting this injury. The July 1972 examiner determined that the bony structure of the foot was normal in texture and density without evidence of an old fracture. The July 2019 VA examiner also expressed that the evidence was not sufficient to establish that a foot condition clearly and unmistakably preexisted service. The examiner noted that had such a foot condition preexisted service, there would have been evidence of callus formation of the metatarsal visible on the 1972 x-ray. Accordingly, the Board finds that the evidence does not clearly and unmistakably establish that the Veteran had a foot condition prior to service, and therefore the Veteran is presumed sound at entry. In regards to direct service connection, the Board finds that the preponderance of the evidence finds against nexus. The Board finds that the most probative opinion of record, the December 2020 VA examination, indicated that there was no nexus between the Veteran’s foot conditions and his active duty service. The examiner thoroughly reviewed the Veteran’s file and determined that the Veteran’s pes planus and plantar fasciitis were not related to the in-service foot injury. The examiner acknowledged that the Veteran had complained of foot issues in July 1972, but that the pain had been acute, and that the examiner had not found any evidence of foot abnormalities though observation or x-ray. The examiner noted that x-ray evidence indicated that the Veteran’s foot injury had healed without residuals and that the eventual diagnosis of pes planus and plantar fasciitis were too remote to be connected to service. The evidence of record is contrary to any continuous symptoms as demonstrated by the negative findings and reports in the post-active duty STRs. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.