Citation Nr: 21015641 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-21 871 DATE: March 18, 2021 ORDER Entitlement to service connection for a disability productive of chronic left leg pain, to include peripheral vascular disease (PVD) of the left lower extremity, as secondary to service-connected bilateral pes planus with left neuroma, is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral pes planus with left neuroma prior to May 11, 2015, is remanded. FINDING OF FACT The preponderance of the evidence of record establishes that the Veteran’s chronic left leg pain, to include PVD of the left lower extremity, is not proximately due to, related to, or aggravated by service-connected bilateral pes planus with left neuroma. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability productive of chronic left leg pain, to include PVD of the left lower extremity, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era and Peacetime, from June 1974 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2009 and February 2020 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office). In May 2018, the Veteran testified at a hearing before the undersigned Veteran’s Law Judge (VLJ). A transcript of the hearing is of record. When these matters came before the Board most recently in September 2020, they were remanded for additional development, particularly, VA medical examinations and opinions. The Board observes that the additional development has been completed and the matters return to the Board for further appellate review. The Board also observes that additional VA treatment records have been added to the claims file since the RO last adjudicated these matters. However, review of this evidence reveals that it is cumulative or duplicative of evidence previously of record or related to other disabilities. Therefore, the Board shall proceed with a decision without prejudice to the Veteran. REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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, 1166-67 (Fed. Cir. 2004)). Service connection may also be granted for any disease 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). Service connection may be granted for a condition on a “secondary” theory of entitlement if the condition is shown to have been caused or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. The term “aggravated” in this context means that, although the secondary condition was not caused by the service-connected condition, the secondary condition was chronically worsened by the service-connected condition. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on her behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for a disability productive of chronic left leg pain, to include PVD of the left lower extremity, as secondary to service-connected bilateral pes planus with left neuroma, is denied. The Veteran seeks entitlement to service connection for chronic left leg pain, to include PVD of the left lower extremity, as secondary to service-connected bilateral pes planus with left neuroma. Specifically, he contends, through his representative, that his “inability to exercise regularly as a result of his bilateral pes planus has directly contributed to his current diagnosis of [PVD] of the left lower extremity.” Following the Board’s September 2020 remand, the Veteran underwent an in-person VA examination in October 2020 to assess the nature, severity, and likely etiology of his chronic left leg pain, to include PVD of the left lower extremity. According to the examination reports, the Veteran was diagnosed with peripheral arterial disease (PAD) (i.e., PVD). The Veteran described pain and numbness that “comes and goes,” but could not recall when the symptoms started. Thus, the Veteran has a current left leg disability. However, the VA examiner opined that the Veteran’s PVD was less likely than not proximately due to or the result of his service-connected bilateral pes planus with left neuroma. By way of rationale, the VA examiner referred to medical literature regarding the various causations of PVD (e.g., diabetes, smoking, obesity, hypertension, hyperlipidemia, increasing age, genetics, and high levels of homocysteine). According to the VA examiner, bilateral pes planus with left neuroma “is not a risk factor nor a causative factor for PVD/PAD.” More specifically, the VA examiner indicated that current medical evidence does not support either a direct or secondary connection between the Veteran’s PVD and bilateral pes planus with left neuroma, to include by way of aggravation. The Board assigns significant probative weight to the opinions rendered by the VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The opinions contain not only clear conclusions with supporting data; but also, a reasoned medical explanation connecting the two. Id. Moreover, the opinions are based upon a comprehensive review of the claims file, in-person examination of the Veteran, the Veteran’s self-reports, and the examiner’s expertise. The VA examiner’s competent opinions are also not inconsistent with the Veteran’s treatment records, or the three prior VA examinations (i.e., February 2009, December 2017, November 2019) conducted in relation to this claim. Upon review, the Board has considered both the lay and medical evidence of record, including the Veteran’s May 2018 testimony before the undersigned VLJ. While the Veteran contends that inactivity associated with service-connected bilateral pes planus with left neuroma “directly contributed” to his left lower extremity PVD, the Board finds that, as a lay person, he is not competent to offer such an etiological opinion. The etiology of cardiovascular disease is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not possess the education, training, and experience to offer an opinion as to onset or causation of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77. Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence in this matter. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Based upon the foregoing, the Board finds that service connection for a disability productive of chronic left leg pain, to include PVD of the left lower extremity, as secondary to service-connected bilateral pes planus with left neuroma is not warranted. Although the competent and probative evidence of record shows that the Veteran currently has diagnoses of both PVD and bilateral pes planus with left neuroma, it does not indicate a causal connection between the two, including by way of aggravation. As such, the Board must conclude that the preponderance of the evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral pes planus with left neuroma prior to May 11, 2015, is remanded. As the Board’s September 2020 decision held, the Veteran has continuously pursued an initial disability rating in excess of 10 percent, effective February 9, 2005, for service-connected bilateral pes planus with left neuroma, which was assigned by Rating Decision dated February 2007. During the pendency of this appeal, a February 2020 Rating Decision granted the Veteran an increased rating of 50 percent (the highest schedular rating allowed under Diagnostic Code (DC) 5276) for service-connected bilateral pes planus with left neuroma effective May 11, 2015. However, the Veteran, through his representative, contends that he is entitled to an increased rating prior to May 11, 2015. As such, the Board will limit its review accordingly. The Board’s September 2020 remand directed that a VA medical opinion addressing the nature and severity of the Veteran’s bilateral foot conditions for the entire period on appeal be obtained. Thereafter, the Veteran underwent an in-person VA examination in October 2020. For the following reasons, the Board finds the October 2020 VA examination reports are inadequate for rating purposes and, as a result, there has not been substantial compliance with the prior remand directives. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, 11 Vet. App. at 271. The VA examiner’s reports do not reference, much less address, the four prior VA examination reports and, particularly, the May 2015 report which, according to the February 2020 Rating Decision, was the “examination showing [the Veteran’s] condition had worsened,” resulting in his rating being increased from 10 percent to 50 percent disabling. As a result, the VA examiner’s opinion appears to be based almost exclusively upon the Veteran’s statements to her during the examination, such as that his condition “has remained the same,” that he was unable to provide “specific examples … to quantify” his endorsement of worsening pain “since 2005,” his reported activities of daily living, and his decision to discontinue treatment. While the Veteran’s statements to the examiner are certainly relevant evidence, the examiner’s analysis and opinion must not stop there and, instead, must also take into consideration the other significant and relevant lay and medical evidence of record, in addition to the examiner’s expertise. Based upon the foregoing, the Board finds that remand is again required to ensure substantial compliance with the prior remand directives, specifically, to obtain a retrospective medical opinion adequate for rating purposes for the period prior to May 11, 2015. Accordingly, this matter is REMANDED for the following actions: 1. Obtain a retrospective VA medical opinion from a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected bilateral pes planus with left neuroma for the entire period on appeal prior to May 11, 2015. **The need for an in-person or telehealth examination should be determined by the appointed examiner. If the Veteran is examined, the examiner must obtain a full history from him. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results (if conducted), the examiner must provide a full description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected bilateral pes planus with left neuroma under the rating criteria for the entire period on appeal prior to May 11, 2015. In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the February 2009, September 2010, and May 2015 VA examination reports. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.