Citation Nr: 21014819 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-67 847 DATE: March 15, 2021 ORDER Service connection for bilateral pes cavus and residuals of a left foot partial amputation, to include as secondary to service-connected bilateral foot disabilities, is denied. FINDINGS OF FACT 1. The Veteran is currently service connected for multiple disabilities of the feet; specifically, bilateral pes planus and plantar fasciitis, bilateral hammertoes, and bilateral hallux valgus. 2. The preponderance of the evidence is against a finding that the Veteran has had pes cavus of the feet at any time during or proximate to the pendency of his claim. 3. The partial amputation of the Veteran’s left foot was caused by non-service-connected diabetes. CONCLUSION OF LAW The criteria for an award of service connection for bilateral pes cavus and residuals of partial amputation of the left foot, to include as secondary to already service-connected bilateral foot disabilities, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1978 to September 1983. His decorations include the Army Service Ribbon, the Overseas Service Ribbon, and the Good Conduct Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In December 2018, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. In December 2020, after taking further action, the AOJ granted service connection for hallux valgus and hammertoes of both feet. The prior denial was otherwise confirmed and continued and the case was returned to the Board. See January 2021 supplemental statement of the case. Service connection for bilateral pes cavus and residuals of partial amputation of the left foot is denied. The Veteran seeks to establish service connection for bilateral pes cavus and residuals of partial amputation of the left foot. He asserts, in essence, that he has pes cavus that was incurred in service. He also contends that a partial amputation of his left foot is secondary to his service-connected bilateral foot disabilities. The record reflects that he is already service connected for multiple disabilities of the feet; specifically, bilateral pes planus and plantar fasciitis, bilateral hammertoes, and bilateral hallux valgus. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Board finds that the preponderance of the evidence is against a finding that the Veteran has had pes cavus at any time during or proximate to the pendency of his claim. While a June 2015 VA examination report shows a diagnosis of acquired pes cavus, a December 2020 VA examiner opined that such diagnosis was recorded in error. The December 2020 examiner reasoned that the Veteran has bilateral pes planus whereby his feet are flat on the floor when he bears weight. The examiner explained that the Veteran does not have pes cavus, which is a high arch, and that an individual cannot have pes cavus and pes planus of the same foot. The Board assigns more probative weight to the December 2020 VA examiner’s opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, the December 2020 opinion explains why an individual cannot have pes planus and pes cavus at the same time, while the June 2015 VA examination report does not explain how those two conditions could co-exist, especially given that the Veteran is already service connected for pes planus. Next, the Board finds that preponderance of the evidence is against finding that the Veteran’s left foot amputation was incurred in service, is otherwise related to service, or was caused or aggravated by his service-connected left foot disabilities. An October 2019 VA examiner opined that the Veteran’s amputation of the left foot was less likely than not incurred in or caused by service. The rationale was that the Veteran’s March 2017 partial left foot amputation was related to non-service-connected osteomyelitis and diabetes-related foot infection. A January 2021 VA examiner opined that the Veteran’s amputation of the left foot was less likely than not proximately due to, the result of, or aggravated beyond natural progression by his service-connected bilateral foot disabilities. The rationale was that the Veteran’s medical records reflect that the Veteran’s partial left foot amputation was secondary to his non-service-connected diabetes. The October 2019 and January 2021 VA examiners’ opinions are probative because they are based on an accurate understanding of the facts and articulate reasons for the conclusions reached. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran may believe that he has pes cavus and that his partial left foot amputation is related to service or secondary to his service-connected foot disabilities. However, the issues involved are medically complex, as they require knowledge of the musculoskeletal and endocrine systems, the incompatibility of simultaneous diagnoses of pes cavus and pes planus, and the relationship between a partial left foot amputation and diabetes versus coexisting bilateral foot conditions. There is nothing in the record to establish that he has the specialized training or experience necessary to render competent opinions on such matters. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2019 and January 2021 VA medical opinions. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.