Citation Nr: 21013636 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 10-47 949 DATE: March 10, 2021 ORDER 1. Entitlement to service connection for residuals of a left foot fracture is denied. 2. Entitlement to service connection for a psychiatric disability, to include as secondary to residuals of a left foot fracture, is denied. FINDINGS OF FACT 1. Residuals of a left foot fracture pre-existed, and are not shown to have chronically worsened in severity during, the appellant’s period of ACDUTRA. 2. An acquired psychiatric disability was not manifested during the appellant’s active duty for training (ACDUTRA) service, and any currently diagnosed psychiatric disability is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for residuals of a left foot fracture is not warranted. 38 U.S.C. §§ 101(24)(B), 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. Service connection for a psychiatric disability, to include as secondary to residuals of a left foot fracture, is not warranted. 38 U.S.C. §§ 101(24)(B), 1110, 5107; 38 C.F.R. §§ 3.6(a), 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) in the Army National Guard from April 27, 1971 to August 27, 1971. The matter of service connection for residuals of a left foot fracture is before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision; the matter of service connection for a psychiatric disability is before the Board on appeal from a May 2016 rating decision. In September 2010, a hearing was held before a Decision Review Officer (DRO) at the Regional Office (RO), and in June 2011, a videoconference hearing was held before the undersigned. Transcripts of both hearings are in the appellant’s record. In August 2011 and May 2014, the case was remanded for additional development. A May 2015 Board decision denied service connection for residuals of a left foot fracture. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a March 2016 Joint Motion for Remand (JMR) by the parties. A March 2016 CAVC Order remanded the matter for compliance with the JMR instructions. In October 2016, the Board remanded the matter for additional development consistent with those instructions. A June 2018 Board decision dismissed the appeal seeking service connection for residuals of a left foot fracture (finding that the appellant abandoned such claim by failing to submit requested authorizations for self-identified critical evidence) and denied service connection for a psychiatric disability. The appellant appealed that decision to the CAVC, resulting in a February 2019 JMR by the parties. A March 2019 CAVC Order remanded the matters for compliance with the JMR instructions. A July 2019 Board decision denied service connection for residuals of a left foot fracture and for a psychiatric disability. The appellant appealed that decision to the CAVC, resulting in a June 2020 JMR by the parties. A June 2020 CAVC Order remanded the matters for compliance with JMR instructions. In September 2020, the Board remanded the matters for additional development. 1. Entitlement to service connection for residuals of a left foot fracture is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.306(a). Service connection may be granted for a disease initially 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). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When a claim of service connection is based on a period of ACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of the ACDUTRA alone. Id. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ACDUTRA. 38 U.S.C. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Rather, the claimant bears the burden of proving both that (1) the preexisting disability worsened (underwent a permanent increase in disability) during service, and (2) that such worsening was beyond the natural progression of the disease. Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Service connection on a chronic disease presumptive basis is also not warranted for periods of ACDUTRA. Smith, 24 Vet. App. at 46-47. Accordingly, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112 and 1137, and 38 C.F.R. § 3.309, do not apply as to any arthritis residuals of a left foot injury. Lay evidence may be competent, in some cases, to establish that a disability began during service or is connected to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background On January 1970 examination for enlistment in the National Guard, the appellant’s left foot was normal. In an associated report of medical history, he endorsed having a history of foot trouble. An April 1971 report of entry on ACDUTRA for the Army National Guard notes that the appellant had been hospitalized for a broken left foot and was treated by a private physician for such condition from March 1970 to September 1970. He indicated that he did not believe that he was medically qualified to perform satisfactory military service. May 1971 service treatment records (STRs) show that the appellant was seen for a complaint of left foot pain on weight-bearing. He reported that he fractured the first metatarsal of his left foot in March 1970 and was treated by a private physician until August 1970, first with a cast and then soaking and rest. A temporary physical profile indicates that he had physical training restrictions due to the first metatarsal fracture. Later that month, physical evaluation of the left foot noted that he walked with his left foot inverted. There were no callosities, demonstrable motor weakness, or tenderness. The toes were supple and there was full range of ankle motion. X-rays of the foot did not reveal any evidence of fracture residuals. The impressions were possible metatarsalgia and no residual evidence of fracture. A metatarsal bar was added to his boot and he was deemed “fit for retention in the Guard and on active duty.” A May 1971 letter from R.M., an attorney for the appellant and his parents, notes that the appellant fractured a bone in his foot the prior year and was experiencing pain but unable to obtain medical attention because he had “become the object of his drill instructor’s vindictiveness because of the fact that he is unable to compete with his fellow basic trainees on an even basis.” The appellant’s father was a former Marine Corps drill instructor and was concerned that the appellant was “being penalized because of a disability which ought to be receiving medical attention.” The appellant’s personal physician had informed the “father that the condition of [the appellant’s] foot is such that if it is not properly cared for now, permanent injury will result.” It was noted that the appellant’s left foot was swollen constantly and was a source of great pain, and that when the appellant sought medical treatment “he was told that he would have to wait for an appointment two or three weeks later.” A June 1971 letter from Major General W.D. to R.M. notes that the appellant reported to his unit dispensary for foot problem in May 1971. He reported that he fractured the first metatarsal of his left foot in March 1970, was treated by a civilian physician until August 1970, and had pain in his left foot on weight-bearing. He was placed on a temporary physical profile. A May 1971 evaluation by an orthopedic surgeon did not find any residuals of a left foot fracture, including the first metatarsal. The provider noted that the appellant was possibly suffering from metatarsalgia. A metatarsal bar was added to his boot and his temporary profile was discontinued. After careful evaluation, it was determined that the appellant met the established physical fitness standards for military service with no assignment limitations. On August 1971 examination for discharge from ACDUTRA, the appellant’s left foot was normal. In an associated report of medical history, he reported foot trouble, and that he had applied for compensation from the Ohio Bureau of Employment for a “severly (sic) damaged left foot” in March 1970. The examining physician noted that all items reported were not service aggravated. On December 1975 examination for separation from the National Guard, the appellant’s left foot was normal on clinical evaluation. He was found not qualified for retention based on other, unrelated, conditions. In a December 1975 report of medical history, he denied foot trouble. In 1980, the appellant began working as a firefighter. See June 2011 Board hearing transcript. He reported that he underwent an entrance physical examination; as discussed in more detail below, his attorney has indicated that his firefighting records do not exist. A July 1989 medical report from The Industrial Commission of Ohio shows that in February 1984 the appellant sustained a back injury as a firefighter. On clinical examination, he had a normal station and normal gait; there was “no definite evidence of muscle weakness or atrophy” of the lower extremities; “dorsiflexion of the great toe [was] diminished on the left, indicating a degree of neuropathy.” A June 1993 private treatment record from University MedNet notes that the appellant sustained a left foot injury five days prior while assisting another fireman at the scene of a fire. He “felt a tearing sensation in his left foot and had the immediate onset of pain about the left calcaneus.” It was noted that he has been limping since then and continued to have pain in and about the left heel with radiation up and down the leg but centered at the left heel. Physical examination of the left lower extremity found full range of motion in the ankle and subtalar joint. The foot was “neurovascular intact and [was] otherwise unremarkable.” X-rays of the left ankle were unremarkable. The impression was pressure rupture plantar fascia left foot. Talus heel cups and pain medication for plantar fascia in the left foot were prescribed. A February 1994 Bureau of Workers’ Compensation report notes that the appellant sustained a pressure rupture in the plantar fascia of the left foot in June 1993. He was pulling another fireman up a flight of stairs when he felt a tearing sensation in his left foot. It was noted that he had worked for the fire department for 13 years, and was previously employed as an auto mechanic for several years, working for various employers. An August 1997 letter from J.F., M.D., notes that the appellant sustained a left ankle injury rescuing another firefighter in June 1993. DR. J.F. noted that the appellant had reported having breathing problems since 1988, and that the smoke inhalation injury during the June 1993 incident “aggravated these pre-existing problems.” The appellant reported that “this is the only occasion he has ever injured the left ankle”; notably, he did not report pre-existing left foot/ankle problems. He had occasional aching pain in the left ankle but no other complaints. Examination of the left ankle, with comparison to the (uninjured) right ankle, revealed a “mild degree of tenderness on palpation of the antero-lateral aspect of the left ankle. No deformity, soft tissue swelling, crepitation, ligamentous weakness, or restriction of range of motion of the left ankle [could] be identified. Ambulation appear[ed] normal.” A February 2010 (received in March 2010) statement from R.A., a friend/neighbor of the appellant, notes that he has seen the appellant walk with “a limping movement in his left leg and ankle.” He noted that the appellant does not like to talk about his military history and did not offer any opinion/statement regarding the etiology of the appellant’s left foot disability. In a February 2010 (also received in March 2010) statement, the appellant asserted that he was never provided a special insert for his boots in service, and that he finds it “interesting” that his service separation examination report made no mention of “all the issues [he] had with [his] feet.” He stated that he was still having problems with his feet years later while serving in the Ohio National Guard and was seen for his feet several more times by the unit medic. On one occasion, he thought he was being referred for foot treatment but was sent to a psychiatrist and told not to return to drill until further notice. During the following year, he “was never contacted about [his] foot or his stress issues and [he] received no treatment for either condition,” and “the response from [his] chain of command was to push [him] out of the Military with no further assistance or treatment.” He asserted that his left foot injury continued to affect him and contributed to his forced retirement due to disability. VA treatment records generally note complaints of left foot pain and assertions by the appellant that his left foot symptoms were made worse by his time on active duty. See June 7, 2010 and May 17, 2012 VA treatment records. Several June 7, 2010 VA treatment records note that the appellant reported pain in the left foot and ankle with radiation of pain to the left knee since fracture of the left foot first metatarsal in March 1970 while enlisted in the National Guard. He indicated that he injured his left foot after he had enlisted and continued to have increasing pain that led to being seen by an orthopedic surgeon. The appellant asserted that the injury was aggravated while he was on active duty and became progressively worse. In a VA treatment note, a VA physician assistant opined that “[i]t is more likely than not that [the appellant’s] [left] foot and ankle pain was aggravated while he was on active duty and has led to increasing pain in left foot an ankle with radiation up to left knee.” A subsequent June 2010 VA treatment records notes complaints of daily, achy, throbbing left foot and ankle pain. X-rays revealed no evidence of fracture, dislocation, or bony destructive change; there was a small degenerative calcaneal spur. A July 2010 VA treatment record notes the appellant’s reported history of a crush injury to the left foot during service in 1970 and increasing pain in the foot and ankle since. He indicated that in 1970 a metal plate used for shoring fell onto the foot, crushing his foot. He reported that during that time he presented to sick call on three separate occasions and reported it to his company commander, but “sucked it up” and never went back again to avoid any conflict. He reported that a “plate” was “placed in the boot to correct or help function.” He was later seen at an Army hospital (during the last 10 months of service in the Reserves), placed on medical leave, and discharged after 6 years. He reported that he sought VA treatment in the early 1980s, 1993, and 2004, but was “just blown off. An MRI was negative except for increased fluid in the middle and posterior subtalar joints and mild nonspecific infiltration of the fat between the distal flexor hallucis longus muscle and the Achilles. At the September 2010 DRO hearing, the appellant testified that in March 1970 he was working in a civilian job when a metal plate used for shoring fell on his left foot, crushing it. He was placed in a cast until about August 1970. About a week into boot camp his foot became swollen while marching to a rifle range, and he was sent to a hospital for evaluation. When he returned to his training unit, he began receiving “enormous amounts of special attention” from drill instructors. He decided to “suck up the pain” until he got back to the National Guard unit. When he returned to his National Guard unit, he saw the company medic on numerous occasions when his foot was swollen. He was sent home to await further orders and several months later was discharged. September 2010 VA treatment records show that the appellant reported that his left foot pain began with a crush injury to the left foot in 1971, and that it was getting worse over the past 2 years. An EMG nerve conduction study of the left lower extremity was “essentially normal.” An October 2010 private treatment record from Nevada Imaging Centers notes that a bone scan of the appellant’s feet revealed “increased activity within the plantar aspect of each calcaneus, more prominent on the right, consistent with plantar spurs,” but did not reveal evidence of acute fracture. Mild degenerative activity was present in the interphalangeal joints and metatarsophalangeal joints, more prominent on the right. On November 2010 VA examination, the appellant reported that in March 1970 a block of steel fell on his left foot while he was working with machinery, fracturing his left foot first metatarsal. He stated that after the cast was removed, he walked awkwardly and had pain. Within a week after going on active duty he was put on sick call due to his left foot problem. He was put on profile for 3 days and then returned to his unit and “gutted it out for the rest of his time on active duty.” He reported that he sought treatment for the left foot in 1991 and also from VA on several occasions but “was blown off.” He indicated that during National Guard training he was put on medical leave because of his left foot. A bone scan revealed prominent activity along the plantar aspect of each calcaneus, more prominent on the right; possibly related to plantar fasciitis and/or plantar spur. X-ray did not reveal any evidence of fracture, dislocation, or bony destructive change; there was mild narrowing of the first metatarsal phalangeal (MTP) joint and a small plantar calcaneal spur was present. The diagnosis was status post left foot first metatarsal fracture with residual left first MTP joint degenerative joint disease (DJD). The examiner opined that “[i]t is less likely as not that his pre active duty left foot first metatarsal fracture was permanently aggravated by his basic training.” The examiner observed that there are no medical records of a left foot problem from May 1971 until June 2010, a period of 39 years; he also noted that the appellant was able to complete a 25-year career as a firefighter after leaving service “and thus was found fit to do the duties of a firefighter which requires a good level of mobility.” A November 2010 VA podiatry record shows that the appellant reported that he has had left lower extremity weakness since his cast was removed in 1970, and that he has “tried to adjust to the weakness” since then. December 2010 VA treatment records show that the appellant reported he “fractured his left ankle in service and since then has had difficulty with lateral instability of the ankle and a tendency for the left foot to drag with ambulation.” It was noted that he felt he had some weakness related to the prolonged casting of the foot just prior to his period of ACDUTRA. December 2010 and January 2011 private treatment records from L.R., C.O., show that the appellant was provided an ankle foot brace. At the June 2011 hearing before the undersigned, the appellant testified that he fractured his left foot in the National Guard and that the foot was placed in a cast for several months. Shortly after starting boot camp, the foot swelled and he was seen by an orthopedic surgeon at Ireland Army Hospital. He stated that during active duty when he marched, or carried a pack, his left foot swelled and fell out from under him. He testified that at service separation he “was not examined by a doctor or anything,” and “there is absolutely nothing mentioned” about his left foot on his service separation examination report. He stated that after service, in the late 1980s, he sought treatment from a private provider who indicated that he had plantar fasciitis. He testified that he had postservice employment as a firefighter for 25 years, and had only one examination (in 1980) for entry on that job. On September 2011 VA examination by Dr. D.K., the appellant reported that in 1980 he applied for, and received training to be, a firefighter, passing the physical examination [to evaluate fitness for that position], and that he continued to work as a firefighter until he received a medical retirement in 2000 (due to smoke and toxic chemical inhalation from his occupation). It was noted that no medical records pertaining to his left foot disability were available for the period between his discharge from ACDUTRA and 2010. On examination and interview of the appellant, and review (and citation to) his record, the examiner opined that the appellant’s “present left foot disability is less likely as not (less than 50-50 probability) aggravated beyond the natural history of [his] preexisting left foot disability during his active military service, April 27 to August 27, 1971.” The examiner explained that based on the available medical evidence, it appeared that the appellant sustained a soft tissue crushing injury and possibly a fracture of the left first metatarsal; that X-rays in May 1971 were normal; and that fractures can heal without scar, however, there is usually some residual noted on the X-rays. Between 1971 and 1976 there is no medical evidence of a left foot condition being treated or evaluated on behalf of the National Guard. The appellant was employed as a firefighter, which required “extreme physical activities,” from 1980 through 2000. He experienced an “exacerbation of symptomatology during active service training,” but (given the absence of residual pathology between 1971 and 2010) this was “an acute episode but transient.” There is no medical evidence supporting that permanent aggravation of the left foot condition beyond the natural progression of the pre-existing crush injury had occurred [during ACDUTRA]; “medical evidence supports that a temporary flare-up of a pre-existing condition did occur during active service [duty] but does not support a worsening of the underlying condition.” On August 2014 VA examination by Dr. D.K., it was noted that there were no significant physical changes of the appellant’s left foot since the prior (September 2011) examination. He noted an absence of medical records from 1971 through 1993, including the identified 1980 firefighter entrance examination report. He also noted that June 1993 private medical records show that the appellant sustained a left foot severe ruptured plantar fascia while working as a firefighter. The examiner opined that based on written medical reports, diagnostic studies, and a history of severe injury to the left foot in 1993 as a firefighter, the appellant’s “current left foot disability is less likely [a]s not (less than 50% probability) incurred or aggravated (permanently increased in severity) during his ACDURTA (sic) April 27 to August 27, 1971.” The examiner explained that there was a 20-year gap of medical records to support the appellant’s contention that he incurred or aggravated (permanently increased in severity) his left foot disability during his ACDUTRA period. Furthermore, he was a firefighter for many years and sustained a significant injury to his left foot (superimposed on any pre-existing left foot disability) in June 1993. A December 2014 letter from M.J., M.D., a private physician, notes that the appellant was followed in his clinic. Dr. M.J. stated that the appellant reported a crushing foot injury in May 1970 and that he began basic training in April 1971. Basic training involved marching, climbing, running, physical training, carrying a pack, etc. In May 1971, he was referred to Ireland Army Hospital for exacerbation of left foot pain. He was placed on profile and restricted duty. According to the appellant, he was evaluated by two separate orthopedic surgeons who reportedly recommended medical discharge from service. However, he completed basic training despite persisting left foot pain. He returned to his National Guard unit and reportedly was placed on medical leave in January 1975. He was discharged in January 1976. After discharge he received treatment for his left foot from private physicians. He reported he has had persistent problems and pain in his left foot. Dr. M.J. opined that “although the foot injury initially occurred prior to his military service, the activities that he [e]ndured in the military at least as likely as not, aggravated and may have worsened the severity of his left foot condition.” A May 2015 Board decision denied service connection for residuals of a left foot fracture. The appellant appealed that decision to the CAVC, resulting in a March 2016 JMR. In October 2016, the Board remanded the matter for additional development consistent with those instructions, namely for the appellant to provide authorization for VA to obtain copies of his firefighter physical examinations (in particular his 1980 entrance examination report) and to obtain complete National Guard records. Notably, the appellant and his attorney had insisted in the appeal to the CAVC that the firefighter entrance report is integral to his claim (see March 2016 JMR). However, he did not provide the necessary release form despite numerous VA efforts to contact him and his attorney. In May 2017, a representative from the Ohio Adjutant General’s office reported that she was “able to locate a few additional records and would send them to [VA].” Later that month, VA received a manilla envelope from the State of Ohio Adjutant General’s Department containing several pages of records. VA correspondence in March 2018 notified the appellant and his attorney of all actions taken to obtain outstanding service treatment records (STRs) and its finding that any further attempt would be futile. In March 2018, the appellant’s attorney reported that he contacted the fire department and that the department would send any records they retained. In April 2018, Dr. D.K again reviewed the entire record (including several (duplicate) pages of Ohio National Guard records received from the Ohio Adjutant General’s Department in May 2017, and noted that no new medical records were available for review. He again summarized pertinent medical history (with citation to the record throughout) and opined it was “less likely as not (less than 50% probability) that each diagnosed left foot disability was incurred or aggravated (permanently increased in severity) during [the appellant’s] period of ACDUTRA from April 27 to August 27, 1971.” He explained that the appellant experienced “a temporary escalation of symptomatology,” including metatarsalgia (metatarsal pain) in service. A June 2018 Board decision dismissed the claim seeking service connection for residuals of a left foot fracture (pursuant to 38 C.F.R. § 3.158(a), finding that the appellant abandoned such claim by failing to submit requested authorizations for self-identified critical evidence) and denied service connection for a psychiatric disability. The appellant appealed that decision to the CAVC, resulting in a February 2019 JMR by the parties. In April 2019, the appellant’s attorney reported that the firefighter records had been destroyed. In July 2019, the Board denied the left foot claim finding that residuals of a left foot fracture pre-existed, and were not shown to have chronically worsened in severity during, the appellant’s ACDUTRA service. The decision also denied service connection for a psychiatric disability. The appellant appealed that decision to the CAVC, resulting in a June 2020 JMR by the parties. In the June 2020 JMR, the parties agreed that remand was warranted because the Board erred by failing to “ensure compliance with the duty to assist, as well as the terms of the prior remand which required that such [Ohio National Guard] records be obtained.” The JMR specifically notes that the “record does not contain any indication that further efforts were made to obtain a complete copy of Appellant’s records from his period of service in the [Ohio National Guard], nor is there any confirmation in the record that there are no records available other [than] what was previously furnished” (emphasis in original). The appeal was again remanded by the Board in September 2020 for additional development consistent with the JMR instructions In October 2020, VA received a manilla folder from the State of Ohio Adjutant General’s Department. It contained 11 pages of records (copies of which were already associated with the claims file) and a DD 214. [In January 2021, the appellant’s attorney requested a copy of such records. A VA Form 5572 dated later that month shows a VA Records Management Officer completed the request by disclosing “One complete electronic copy of Ohio National Guard Records for [the appellant].”] In November 2020, Dr. D.K. re-reviewed the record, including the (duplicate) Ohio National Guard records received in October 2020, and continued to opine that the appellant’s left foot disability is less likely than not incurred, or aggravated, during his period of ACDUTRA. He noted that he previously provided “multiple rationales” for such opinion. He reiterated that there is “a lack of nexus with no relevant post separation medical treatment records.” He stated that “there is no medical physical evidence to support” the claim. He again noted that the appellant’s “post separation occupation has been physically demanding and would support the contention that [his] occupation as a firefighter acceleration (sic) normal wear and tear of the [appellant’s] left foot degenerative conditions.” Analysis It is not in dispute that the appellant has a left foot disability, as status post left foot first metatarsal fracture with residual left first MTP DJD was diagnosed on November 2010 VA examination. Next, the appellant must show evidence of in-service incurrence or aggravation of a disease or injury. The appellant’s STRs do not reflect an examination contemporaneous with his entrance on ACDUTRA in April 1971. Consequently, the presumption of soundness does not apply. The appellant acknowledges that he fractured his left foot first metatarsal in March (or alternatively, in May) 1970, prior to entry on ACDUTRA (albeit after enlisting in the National Guard). [The Board notes that he reported to one provider that it was in 1971.] In an April 1971 report of medical history on entry for ACDUTRA for the National Guard, he reported that he was hospitalized for a left foot fracture and received treatment for such condition from March 1970 to September 1970. [Notably, the period following enlistment in the National Guard but prior to entry on ACDUTRA is not a qualifying period of service for VA compensation benefits (as injury during such period would not have been in the line of duty). See 38 U.S.C. § 1110.] To substantiate his claim of service connection for residuals of a left foot fracture in these circumstances, the appellant must show that the disability was aggravated by (worsened beyond the natural progression during) his period of ACDUTRA. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. He asserts that during basic training he developed pain and swelling in the left foot that has continued to affect him since. The Board acknowledges that he is competent to report persisting symptoms of pain and swelling during ACDUTRA and since. His STRs show that he was seen for left foot complaints in May 1971 (when X-rays did not find any abnormality and the diagnosis was possible metatarsalgia); however, the STRs are silent for any further complaints, treatment, findings, or diagnosis related to the left foot, and he was able to complete the ACDUTRA period. On August 1971 examination for discharge from ACDUTRA, he reported a history of foot trouble; the left foot was normal on clinical examination, and the examiner explicitly noted that the foot problem was not service aggravated. While the appellant appears to be alleging that he was forced into an undesired discharge from the National Guard due to left foot problems, the contemporaneous record provides no support for such allegation; he was separated from the National Guard on completion of the term required, in 1976. Significantly, he then passed a physical examination for employment as a firefighter, and was able to maintain such physically demanding employment for many years, sustaining a job-related left ankle/plantar fascia injury in the course of such employment in 1993. Significantly his own private physician (in a statement apparently in support of a Workers’ Compensation claim) stated that the appellant’s only left foot injury was that sustained in June 1973; no pre-existing left foot disability was then noted). Such evidence simply does not support that there was chronic worsening of the pre-service left foot fracture residual pathology during the ACDUTRA period. The evidence does not show that the left ankle arthritis now shown was manifested during the period of ACDUTRA (or soon thereafter, so as to suggest onset in service). Such evidence clearly reflects that during ACDUTRA there was an acute exacerbation of symptoms which resolved, but not a chronic worsening of underlying pathology during the ACDUTRA. The appellant asserts that his left foot symptoms in service persisted and that he sought treatment several times, including from a National Guard unit medic, following his period of ACDUTRA. However, his service records (including those received from the Ohio Adjutant General’s Department in May 2017 and October 2020) do not show any further complaints, treatment, findings, or diagnosis related to the left foot during the (approximately-5 remaining years) of his 6-year National Guard enlistment (which he was able to complete). On December 1975 examination for separation from the National Guard, his left foot was normal on clinical evaluation, and he denied foot trouble, arthritis, neuritis, and bone, joint, or other deformity (contraindicating his account that he was forced out due to a left foot disability). The initial documentation of postservice treatment for left foot/ankle complaints in the record is in June 1993, when he sustained an intervening firefighter job-related left foot injury (diagnosed as pressure rupture plantar fascia, left foot). This evidence suggests that any aggravation of pre-service left foot pathology occurred many years after, not during, his ACDUTRA. His allegations to the contrary are self-serving and unsupported, but contradicted, by available clinical data. The record contains medical evidence that both supports the appellant’s claim and is against the claim. The June 2010 VA provider’s opinion and the December 2014 opinion of Dr. M.J. support that his left foot disability was aggravated during his ACDUTRA. However, both are premised on the appellant’s own account of the onset and chronic progression of left foot symptoms during service (neither discusses the June 1993 documented injury and the opinions do not reflect familiarity with the complete factual record). Significantly, Dr. M.J.’s opinion points to the appellant’s reports of continuity of symptoms (with postservice treatment), that simply are not supported by, and is inconsistent with, factual evidence in the record. Dr. M.J.’s opinion is also stated in a speculative manner, noting that the military activities aggravated and may have worsened the severity of the left foot condition. Dr. M.J. and the June 2010 VA treatment-provider did not account for: the absence of notation of left foot complaints and/or findings in the appellant’s service records after May 1971; the lengthy interval between his ACDUTRA and the initial documentation of postservice left foot complaints or treatment in the record, including normal feet on December 1975 National Guard separation examination clinical evaluation and his then denial of foot trouble; the appellant’s ability to pass a firefighter physical (while the examination report is unavailable, it is not in dispute that he was employed as a firefighter for a long time thereafter, belying a finding of any disqualifying foot disability, and he has acknowledged undergoing a physical for the firefighter position); or, the significance of the intercurrent (June 1993) left foot/ankle injury he sustained in his job as firefighter. The Board finds that the opinions of the June 2010 VA provider and Dr. M.J. are premised on incomplete and inaccurate factual background, and merit little, if any, probative value. The November 2010, September 2011, August 2014, April 2018, and November 2020 VA examiner opinions are against the appellant’s claim, as they indicate that his left foot disability was not incurred in, or aggravated by, his period of ACDUTRA. The examiners’ opinions reflect familiarity with the entire record and cite to clinical data that support their conclusions, that the complaint in service represented an acute exacerbation that resolved without chronic residuals, and that the pre-existing left foot disability was not worsened beyond natural progression during the period of ACDUTRA. The Board finds these opinions cumulatively to be highly probative evidence in the matter at hand. The August 2014 VA examiner’s opinion in particular, cites to supporting factual data, including a 20+ year gap in evidence of postservice left foot complaints and treatment, the appellant’s demanding occupation as a firefighter during that period (which would be inconsistent with any significantly disabling musculoskeletal pathology), and the intervening postservice left foot/ankle job-related injury. In April 2018, upon then-confirmation that all available National Guard records were obtained, the examiner again summarized the pertinent medical history and provided the same opinion. And most recently, in November 2020 upon re-review of the record, including the (duplicative) Ohio National Guard records received in October 2020, he continued to provide a negative nexus opinion. The Board has considered the appellant’s statements that his residuals of a left foot fracture permanently increased in severity and/or increased beyond their natural progression during his period of ACDUTRA. Once again, although he is competent to observe he had left foot symptoms and impairment, his subsequent completion of his National Guard service obligation and his ability to pass a physical examination for employment as a firefighter and to maintain such employment for some 25 years after the ACDUTRA service, bely that he had chronic disabling left foot pathology throughout since his ACDUTRA. No chronic pathology superimposed on the pre-service fracture residuals has been identified by any medical provider who has expressed familiarity with the entire factual record). Furthermore, he himself denied having foot trouble in December 1975 (on National Guard separation examination) and did not report a preexisting left foot problem in 1993 when he injured his left foot firefighting (while reporting a pre-existing respiratory problem). His report of chronic disabling left foot pathology throughout since his ACDUTRA (made in the context of the instant claim) is not credible considering the contradicting contemporaneous evidence during that period of record. The Board finds that preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal in this matter must be denied. 2. Entitlement to service connection for a psychiatric disability, to include as secondary to residuals of a left foot fracture, is denied. Factual Background and Analysis The appellant’s primary theory of entitlement to this benefit is one of secondary service connection; he contends that his psychiatric disability is secondary to his claimed left foot disability. Specifically, he contends that he has extreme depression and “stress and trust issues” secondary to his left foot disability and from “the stress that was caused by [his] treatment during [his] enlistment.” See February 2010 statement and April 2016 VA Form 21-526EZ. A May 2016 rating decision denied service connection for extreme depression. [The issue is characterized (as stated above) to reflect that the claim encompasses all psychiatric disabilities, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).] On January 1970 examination for enlistment in the National Guard, psychiatric examination was normal; the appellant denied frequent trouble sleeping/nightmares, depression or excessive worry, and loss or memory. The appellant’s ACDUTRA STRs are silent for complaints, treatment, or diagnoses pertaining to a psychiatric disability. On August 1971 examination for discharge from ACDUTRA, psychiatric clinical evaluation was normal; he denied depression or excessive worry, nervous trouble, loss of memory, and trouble sleeping. On December 1975 examination for separation from the National Guard, psychiatric clinical evaluation was normal. The appellant reported frequent trouble sleeping, depression or excessive worry, and nervous trouble; he reported being treated for extreme depression in October 1975 (notably, not during a recognized period of active duty). The examiner stated, “It is felt that he has a transient personality disorder.” It was noted that the appellant was taking valium and had attributed his insomnia, depression, worrying, headaches, dizziness (no syncope), chest pain, shortness of breath, and palpitations all to “nerves.” Postservice treatment records are silent regarding psychiatric complaints or diagnoses for more than two decades after the appellant’s discharge from ACDUTRA. As discussed above, a 1980 firefighter entrance physical examination report is not in the record, and his attorney has stated it was destroyed. [Nonetheless, as he worked as a firefighter for many years, it may reasonably be assumed that a disqualifying psychiatric disability was not found.] June 1993 clinical records, a July 1993 Industrial Commission of Ohio record, and an August 1997 medical report are silent regarding psychiatric complaints (while noting neck, left ankle/foot, right wrist and arm complaints, and respiratory problems stemming from smoke inhalation). A February 1994 Bureau of Workers’ Compensation record notes that the appellant’s pulmonary specialist “referred [him] for concurrent psychiatric visits for treatment of anxiety and depressive symptoms related to the pulmonary problem” (from a June 1993 smoke inhalation injury). A March 2010 VA mental health record notes complaints of chronic depression, anxiety, mood swings, disillusionment, and social withdrawal resulting from the appellant’s foot disability. A VA psychologist diagnosed “mood disorder due to medical condition” (foot disorder). Subsequent VA treatment records note negative depression screens in June 2010, September 2010, and May 2012. Notably, the personality disorder diagnosed in 1975 (when the appellant was not in line of duty on active duty Federalized service) National Guard records is not a compensable disability. See 38 C.F.R. §§ 3.303(c), 4.9. The appellant claims he has a psychiatric disability secondary to his left foot disability and from his period of ACDUTRA. It is not in dispute that he has a diagnosis of a mood disorder secondary to his foot disability. However, as service connection for residuals of a left foot fracture has been denied, the claim of service connection for a psychiatric disability as secondary to a left foot disability lacks legal merit. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 430 (1994). The analysis proceeds to whether a diagnosed psychiatric disability may be otherwise etiologically related to the appellant’s period of ACDUTRA. The appellant’s ACDUTRA STRs are silent for complaints, treatment, or diagnoses pertaining to a psychiatric disability. On August 1971 examination for discharge from ACDUTRA, psychiatric clinical evaluation was normal; he denied depression or excessive worry, nervous trouble, loss of memory, and trouble sleeping. Accordingly, service connection under 38 U.S.C. § 1110; 38 C.F.R. §§ 3.6(a), 3.303(a) is not warranted. The analysis turns to whether service connection for a psychiatric disability may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service (under 38 C.F.R. § 3.303(d)). There is no competent (medical opinion) evidence of record that relates a diagnosed acquired psychiatric disability to the appellant’s period of ACDUTRA; he has not submitted any such evidence, and has not suggested that any such evidence exists. In short, there is no competent evidence that an acquired psychiatric disability, first documented many years after his ACDUTRA, is related to an injury, disease, or event during his ACDUTRA. 38 C.F.R. §§ 3.6(a), 3.303(d). The appellant’s own assertions that his psychiatric disability is due to stress during his period of ACDUTRA, are not competent evidence in the matter. In the absence of evidence of onset during a qualifying period of service (here, the only such service shown was the 1971 period of ACDUTRA) the etiology of a psychiatric disability first diagnosed approximately 24 years after the ACDUTRA (and found to be due to nonservice-connected pulmonary problems) then again nearly four decades following ACDUTRA (and related then to a nonservice-connected foot disability) is medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As he is a layperson, the appellant lacks the requisite expertise to offer a probative opinion relating his current psychiatric disability to alleged [and undocumented] stress during his remote ACDUTRA. He has not submitted any medical opinion or medical literature in support of this claim. The preponderance of the evidence is against this claim. The appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.