Citation Nr: 21015331 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-25 996 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral foot conditions is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral foot conditions began in service or are otherwise related to an in-service disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral foot conditions have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from July 1973 to November 1975. The Veteran died in April 2015 and the Appellant is the Veteran’s surviving widow. The Appellant was properly substituted for the Veteran in this appeal in November 2019. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing before the undersigned Veterans Law Judge in May 2020. A transcript of the hearing has been included with the record. The issue was previously before the Board in June 2020. The Board remanded to provide a new VA examination addressing the Veteran’s bilateral foot conditions, and to provide the Appellant the opportunity to obtain outstanding private treatment records. There has been substantial compliance with the remand directives, and the appeal is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for bilateral foot conditions The Appellant contends that the Veteran’s bilateral foot conditions were directly related to the Veteran’s active duty service, to include an in-service foot injury. The Veteran’s July 1973 physical examination provided normal findings for the Veteran’s feet on entrance into active service. The Veteran’s service treatment record from March 1975 reported the Veteran received treatment for a bilateral foot condition. The Veteran complained of pain on the arches and the pads of the major toes of both feet. The Veteran reported experiencing symptoms for the previous 18 months. The treating physician reported the Veteran’s foot condition as a strain with callosity on both great toes and noted mild pes planus. The Veteran received two Chapter 13 physical examinations in September 1975 and October 1975. The Veteran’s in-service physical examinations provided normal findings for the Veteran’s feet. Additionally, the Veteran reported no history of foot trouble. The Veteran’s November 1975 separation examination was negative for any foot condition. The Veteran’s separation physical included a signed statement from the Veteran claiming that he did not experience any significant health changes since his last examination. The record contains the Veteran’s private medical treatment records regarding the Veteran’s October 1998 left plantar fasciectomy. The record contains VA podiatry reports, which demonstrated the Veteran suffered from foot pain associated with his diagnosis of type two diabetes mellitus. The Veteran’s VA medical treatment record from March 2005 reported the Veteran presented for his diabetes mellitus foot examination with complaints of painful hammertoes and bunion of the left foot. The Veteran’s April 2007 VA podiatry note reported the Veteran suffered severe pain in his toes. The Veteran complained that his diabetic orthotic shoes hurt his feet. The Veteran reported swelling of his left foot. The April 2007 VA podiatry note provided the diagnoses of hammertoes, bunion, pes planus, foot pain, diabetes mellitus, and peripheral vascular disease, all affecting the Veteran’s feet. The Veteran’s March 2011 VA medical record reported the Veteran’s complaints of bilateral foot pain and cramping. The Veteran noted symptoms of burning, numbness, and tingling. The treating podiatrist provided the diagnosis of insulin-dependent diabetes mellitus with peripheral neuropathy. In March 2012, the Veteran received treatment for bilateral foot ulcers related to diabetic neuropathy. In February 2015, the Veteran underwent a VA examination of his foot conditions. The VA examiner provided the diagnosis of bilateral metatarsalgia and bilateral hammer toes, with the date of the diagnosis given as the 1990s. The examiner also provided the diagnosis of hallux valgus of the right foot from 2015. The VA examiner identified the Veteran had multiple surgeries in the 1990s for hammer toes and plantar fascia releases. The examination noted the Veteran had balance problems and limited walking with a cane. The VA examiner noted the Veteran used accommodative shoes and inserts. The VA examiner noted the Veteran’s service treatment record in March 1975 regarding his foot problems. The examiner noted the Veteran was treated and provided arch supports. The VA examiner noted the Veteran’s service treatment records were negative for any other evidence of a foot condition and found that his foot condition was not related to his active service. However, the examiner did not appear to consider any of the Veteran’s lay statements in rendering a negative opinion, and the opinion is therefore afforded low probative weight. During the May 2020 Board hearing, the Appellant testified that the Veteran told her that his boots never fit him well in service, and that his feet hurt from walking and marching in his boots. Additionally, the record contains the Veteran’s lay statement in support of his claim, submitted in March 2014, that reported the Veteran was under the care of doctors due to his foot conditions since service. Pursuant to the Board remand, the RO provided the Appellant a VA examination to address the Veteran’s bilateral foot condition in January 2021. The VA examiner provided the medical opinion that the Veteran’s claimed bilateral foot condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran’s enlistment examination was negative for foot conditions. The VA examiner provided the opinion that the Veteran had an acute episode of bilateral foot pain while in service, with apparent resolution evident by the Veteran’s normal foot findings noted in the separation examination. The VA examiner noted it was highly unlikely that a foot condition would have gone unreported or missed at the separation examination. The examiner provided that the Veteran’s first documented report of a foot condition found in the record was in 1998. The VA examiner noted the February 2015 VA examination reported the Veteran’s foot conditions began in the 1990s. The VA examiner noted the Veteran’s diagnosed metatarsalgia, hammer toes, and hallux valgus are associated with aging due to normal wear and tear. As the Veteran’s separation examination showed the Veteran did not suffer from a foot condition upon his discharge from service, the VA examiner concluded that the medical evidence of record did not support the Veteran’s claims of onset in service with chronicity since service. The Board acknowledges that the Veteran had current diagnoses of metatarsalgia, hammer toe affecting both feet, and hallux valgus of the right foot. The Veteran’s private and VA assessments show regular treatment for his bilateral foot conditions beginning in the 1990s. The Veteran’s March 1975 service treatment record established that he received treatment while in active service for maladies of both feet, recorded as callosity on both great toes and mild pes planus of the left and right feet. The Board also recognizes the Appellant’s lay statements recounting the Veteran’s complaints about foot pain while in service. Thus, the question of service connection turns on whether there is evidence of a nexus between the Veteran’s in-service disease or injury and the Veteran’s claimed bilateral foot conditions. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Board finds the January 2021 VA medical opinion to be highly probative evidence that the Veteran’s bilateral foot conditions are not related to his active duty military service. The VA examiner provided the medical opinion that the Veteran suffered an acute episode of foot pain, which was treated and resolved with arch support while the Veteran was in active duty service. The VA examiner’s opinion was based on a thorough review of the Veteran’s service treatment records, which showed the Veteran reported no additional foot pain or condition after March 1975, to include on his November 1975 separation examination. The VA examiner noted that the evidence of record demonstrated that the Veteran did not receive treatment for his foot condition post active service until 1998, 23 years after separation of service and the first recorded complaints of symptoms of foot pain. Although the absence of medical treatment records since service is not dispositive, this must be considered as it bears probative evidence against chronicity showing a nexus between the Veteran’s bilateral foot conditions and his in-service injury. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The January 2021 VA examiner noted the Veteran’s contentions that his foot condition had its onset in service and continued. However, the Board finds the evidence of record is consistent with the examiner’s opinion that the medical evidence does not support the Appellant’s claim of chronicity. The Board recognizes that the Veteran stated that he was under the care of a doctor for his feet since he left the Army. The Veteran is competent to report undergoing continuous medical treatment for foot problems since his discharge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the record contains the Veteran’s lay statements regarding symptoms of foot pain observed since service. Additionally, the Board recognizes the Appellant’s lay testimony regarding the Veteran’s complaints of his boots not fitting in service, which caused him foot pain. The Appellant testified that she knew the Veteran around the time of his separation from service, and the Appellant remembered that the Veteran always complained about his right foot. The Board acknowledges that as a lay person the Appellant and the Veteran are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Additionally, as a caregiver, the Appellant is able to offer additional insight to the Veteran’s feet, specifically the wound care she provided. However, the medical and lay evidence of record established the Veteran suffered peripheral neuropathy, ulcers of both feet, and additional foot disorders associated with the Veteran’s diagnosis of type two diabetes mellitus. The Appellant testified that the Veteran experienced bilateral foot pain, and that she did not know if the Veteran’s foot problems were due to his diagnosis of diabetes. As the symptomatology of the Veteran’s foot conditions are compounded by comorbid disorders involving complex medical matters, the Veteran as a layperson without the appropriate medical training and expertise, was not competent to provide a probative opinion as to the etiology and chronicity of the symptoms of medical conditions that simultaneously affected his feet. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The probative evidence of record is against a finding that the Veteran’s bilateral foot conditions began in service and continued to the time of his death. Accordingly, the Board finds the Appellant’s claim for service connection is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the claim and therefore the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, Associate 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.