Citation Nr: 21020701 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-08 480 DATE: April 8, 2021 ORDER Entitlement to service connection for a right foot disability other than heel spurs, osteophytes, and Reiter’s syndrome is denied. FINDINGS OF FACT 1. Service connection has been separately and finally denied for heel spurs, osteophytes, and Reiter's syndrome (with enthesopathy). 2. The Veteran has conditions of the right foot (other than heel spurs, osteophytes and Reiter's syndrome) diagnosed as plantar fasciitis and nonsurgical arthritis; however, the most probative (competent and credible) evidence is against finding that these other right foot conditions were caused or aggravated by his active military service, regardless of whether on active duty (AD) or, instead, active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the reserves.   CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right foot disability, including for the plantar fasciitis and arthritis that is additional to the heel spurs, osteophytes and Reiter’s syndrome previously claimed. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on AD from February 1973 to January 1976. Thereafter, he had periods of INACDUTRA and ACDUTRA in the reserves from 1984 to February 2003. In October 2011, the Veteran testified at a hearing at the local regional office (RO) before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. This claim was most recently before the Board in July 2017, when it was remanded back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration, to include requesting service personnel records (SPRs) and a medical nexus opinion concerning the etiology of the Veteran’s claimed disabilities referable his right foot. There since has been the required compliance – certainly acceptable substantial compliance, with the remand directives (see SPRs and VA examination reports and addenda). Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (clarifying that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   The Veteran has received diagnoses of several foot disabilities; however, the issue of his entitlement to service connection for heel spurs, osteophytes, and Reiter's syndrome (with enthesopathy) is not presently for Board consideration (see April 2012, October 2013, June 2014, August 2015, December 2015, and July 2017 Board decisions and remands). But all his diagnoses must be considered, so even the additional indications that he has plantar fasciitis and arthritis in this foot. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases (including degenerative joint disease (DJD), i.e., arthritis)) will be presumed to have been incurred in service, absent an intervening (“intercurrent”) cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service (which is one year for arthritis); or, if they were noted in service (or within the applicable presumptive period) with continuity of symptomatology since service according to 38 C.F.R. § 3.303(b) that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The term "active military, naval, or air service" includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury (but not also disease) incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24).   The Veteran testified during his October 2011 hearing before this Board that, while in service, he had to do “running and PT [physical training] and all that stuff”. He also testified that his “arthritis and stuff” was due to “crawling around in the sand.” When questioned during the hearing as to whether his right foot surgery in 2000 was necessary because of an injury incurred during a qualifying period of service – including ACDUTRA, he responded “it’s hard to say”, and he noted that the surgery was during his reserve “service”. However, being a reservist (i.e., having service in the Reserve) is not synonymous with INACDUTRA or ACDUTRA. A person can be a reservist but not have any INACDUTRA or ACDUTRA for certain periods of time (e.g., this Veteran had no INACDUTRA or ACDUTRA from 1976 to 1979 while enlisted in the reserves). After considering the relevant medical and lay evidence, the Board finds that the most probative of this evidence indicates the Veteran does not have a current right foot disability that is as likely as not due to his service – meaning either caused or aggravated by his service. The Veteran separated from AD in January 1976. His January 1976 Report of Medical Examination reflects that his feet were normal upon evaluation. His March 1983 Report of Medical history for enlistment in the reserves shows he denied foot trouble. His corresponding Report of Medical Examination indicates his feet were normal upon evaluation. Subsequently, his November 1987 and February 1993 Reports of Medical History both reflect that he again denied any foot trouble. Moreover, his corresponding Reports of Medical Examination in November 1987 and February 1993 reflect normal feet upon objective physical evaluation. There also are no clinical records noting a foot injury or chronic foot complaints either during his AD or in the decade after. The Board finds that, if he had chronic foot complaints since his active service, it would have been reasonable for him to have reported them rather than specifically denying any foot trouble on at least three occasions. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).   To the extent this claim is not based on the Veteran’s AD service (1973 to 1976), but instead on his additional service in the reserves, the claim also must fail. Simply because he was diagnosed and treated for a right foot disability while enrolled in the reserves does not mean that he is entitled to service connection for the disability. The claimant in this appeal is a “Veteran” based on his prior AD service from February 1973 to January 1976. Therefore, he is entitled to “Veteran” status and the full benefit of VA resources for any compensation claim based on that period of service. However, the evidence does not support that he incurred an injury during that period of service. The Board also has considered whether he has achieved the status of "Veteran" for purposes of his reserve service to obtain service connection for any injury or disease incurred or aggravated in the line of duty during that additional service. See 38 U.S.C. §§ 101(2), 101(24), 1131; 38 C.F.R. § 3.1(d), 3.6(a); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In order for the Veteran to be entitled to service connection based on his additional service in the reserves, he must show that he was disabled due to an injury or a disease incurred or aggravated in the line of duty during a period of ACDUTRA or that he was disabled due to an injury incurred or aggravated in the line of duty during a period of INACDUTRA. In general, “every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination” for acceptance into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). However, for appellants who are already Veterans based upon a period of AD, but the claim is predicated instead on a subsequent period of ACDUTRA, such as here, “[t]he statute requires that there be an examination prior to entry into the period of service on which the claim is based – so, here, the period of ACDUTRA. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))).” Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (finding that the presumption of soundness did not apply in this case to the appellant’s period of ACDUTRA because she was not examined prior to entering into the periods of ACDUTRA). In this case at hand, the Veteran underwent an initial examination in March 1983 for his re-enlistment into the U.S. Army Reserves, during which no defect of the right foot was reported or noted. He also underwent quadrennial examinations in November 1987 and February 1993; again, no defect of the right foot was reported or noted during those examinations. The Veteran has reported that he did not begin having problems with his right foot until the late 1990s (his report has been inconsistent as to the exact year ranging from 1996 to 1999, although the first specific treatment records for his right foot problems are from 1999). He also has consistently denied having any known injury that caused the onset of his right foot pain – including during any period of AD, ACDUTRA or INACDUTRA. Rather, he claims that his problems developed from years of marching and physical training that he participated in during his two decades of military service. The most probative evidence of record, however, does not show that his current right foot disabilities (other than heel spurs, osteophytes of the mid to hindfoot and Reiter’s syndrome), developed until many years after he retired from all military service. The Veteran passed a physical fitness test in April 1996 and again in April 1997. His NCO Evaluation Report for the period from October 1997 to October 1998 shows he was on a temporary profile that excused him from taking the test in October 1998. Private medical records in 1998 show the Veteran was seen for pain in his knees, shoulders, and elbows (June 1998), shoulder (September 1998), back, left elbow, left knee (October 1998), a diagnosis of Reiter’s syndrome, and back and neck pain (rheumatoid) (November 1998), and a smashed left finger (December 1998). However, these records are grossly unremarkable for complaints referable to his feet and to his right foot, especially.   The Veteran’s NCO Evaluation Report for the period from November 1998 to October 1999 shows he was on profile on the date of the Army physical fitness test (APFT) in April 1999. Essentially, he did not have a PT test (which is generally required once a year for military service) for the period from October 1997 to October 1999 due to a physical profile. The Board can reasonably find that this would have also excused him for PT during that period, and he has not argued otherwise. A March 1999 Methodist record indicates the Veteran had a plantar heel spur, described as bony osteophytic changes in the hind and mid foot. It was noted that the reason for the examination was pain. Thus, the record supports a finding that the onset of his right foot pain was in approximately 1999 during a time when he was not undergoing physical fitness testing (and does not even reflect that the spur was noted while he was on INACDUTRA or ACDUTRA). The Veteran’s NCO Evaluation Report for the period from November 1999 to October 2000 also shows he was on a profile in April 2000. The Veteran was able to pass a PT test in April 2001; however, it does not indicate if he had to perform the running portion of the test or whether he was allowed to substitute it with a walk. He has stated that he was on profile for “no running”. The Veteran’s SPRs show that, between March 1998 and March 1999, he had 44 inactive duty points (which equates to 22 days of INACDUTRA) and 23 days of ACDUTRA. From March 1999 to March 2000, he had 51 inactive duty points (which equates to 25.5 days of INACDUTRA) and 14 days of ACDUTRA. From March 2000 to March 2001, he had 47 inactive duty points (which equates to 23.5 days of INACDUTRA) and 14 days of ACDUTRA. From March 2001 to March 2002, he had 39 inactive duty points (which equates to 19.5 days of INACDUTRA) and 14 days of ACDUTRA. From March 2002 to February 2003, he had 4 days of inactive duty points (which equates to two days of INACDUTRA) and no days of INACDUTRA. The Veteran retired from the U.S. Army reserves in February 2003. According to a May 2012 Disability Benefits Questionnaire (DBQ), so from nearly a decade later, the Veteran did not recall any injury to his foot, but that it “just started to bother him over time.” He also stated that, for the last three years he was in the reserves, he was on profile for no running. The examiner surmised that, if the Veteran’s right foot problems were due to his military service, the same condition would be expected to be present in his left foot. The examiner found it less likely than not the Veteran had a right foot disability due to his service and noted that there was no evidence of complaint, treatment, or evaluation for a right foot issue while on AD or ACDUTRA, and that the Veteran was on profile for the last three years of his service – which excused him from running. The examiner added, even if the Veteran was running during prior years, running has not been shown to cause arthritis in one foot and not in the other. A June 2013 DBQ reflects that the Veteran reported the onset of right foot pain in 1996; however, the Board finds this assertion is less than credible as the Veteran passed PT tests in 1996 and 1997, there are no clinical records noting any foot related complaints in 1996, he could not recall any specific injury, and he has given inconsistent statements as to time of onset. The examiner explained that Reiter’s syndrome, which had been diagnosed, causes inflammation and has asymmetrical involvement, sparing the contralateral joint in some cases. The examiner also concluded that the Veteran’s bone spur was most likely associated with his Reiter’s disease, which was not caused by any physical stressors in service like exercise. The Veteran submitted a medical opinion from his private treating physician (Dr. W.G.B.) dated in June 2013. Dr. W.G.B. stated that the Veteran is a long standing patient whom he has treated surgically for “problems related to his twenty year service” and that the Veteran’s disabilities are “directly related to cumulative injuries to primarily his right ankle and foot from the high demands of physical exercise with running and marching on a hard pavement surface during his service.” But the Board finds that this opinion lacks significant probative value. The earliest clinical record cited by Dr. W.G.B. is from December 1999, which supports the onset of pain in approximately 1999. Dr. W.G.B. failed to discuss the Veteran’s normal feet upon examination and/or denial of foot pain in 1976, 1983, 1987, and 1993, that he had limited service in the reserves when compared to non-reserve service, that he has been diagnosed with Reiter’s syndrome, and that he was on a profile for several years in service that excused him from running. Nor did Dr. W.G.B. discuss the Veteran’s duties in service in terms of how often he had to run and march. In this regard, the Board sees that the Veteran’s duties in service tended to be nonlabor-intensive, such as in reenlistment, as a material control supervisor, and as a unit clerk. While he likely would have had marching and running in service, his SPRs indicate his duties were primarily administrative (i.e., clerical). Dr. W.G.B.’s opinion that the Veteran’s “twenty years of service” led to cumulative injuries simply is not adequately supported by the record. A January 2014 DBQ reflects a diagnosis of plantar fasciitis, and Reiter’s disease/degenerative post-surgical arthritis. The Veteran reported that he developed problems with his right foot in 1998 and has been given steroid injections for plantar fasciitis. He reported that in 2000 (after surgery), he was not able to do any running and was given a profile for running for his last three years in the Reserve. The VA examiner opined that the Veteran’s claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. Rather the examiner stated the Veteran has plantar fasciitis and secondary degenerative post-surgical arthritis of the right foot due to his spurs. The examiner also stated that the Reiter’s disease is an inflammatory seronegative arthropathy, which is most likely aggravating beyond the normal progression the DJD of the right foot. The examiner opined that the etiology of the degenerative joint disease is aging, and it is worsened by inflammatory arthritis. The examiner further stated that there is no trauma in this case to consider as the cause of the DJD. Thus, the examiner opined that the plantar fascitis and DJD of the right foot are less likely than not related to physical training in the service from February 5, 1973 to January 29, 1976. A September 2014 addendum notes that the Veteran had no feet problems and had normal arches in 1993, and that he has inflammatory arthritis (Reiter’s) which affects the feet joints, which is the major cause of his feet DJD. The examiner also noted that the Veteran’s foot problems began in 1999 (as evidenced by the earlier normal findings and the 1999 record), and that he was subsequently on profile (thus, he was not doing a Reserve activity which would have likely caused the onset of plantar fasciitis). The claims file includes a July 2018 DBQ nurse’s opinion that the Veteran’s claimed right foot post-surgical or degenerative changes are at least as likely as not incurred between March 1983 and February 2003, and that this is evidence showing that the Veteran had bone spurs during his time in service. Again, the mere presence of a disability while the Veteran is enlisted in the Reserve, is not sufficient upon which to grant service-connection as the disability must have been incurred or aggravated during a period of INACDUTRA (for injuries) or ACDTURA (for injuries or diseases). The nurse also opined that the Veteran’s post-surgical degenerative changes are less likely as not due to excessive training and noted that the Veteran’s private physician (Dr. W.G.B) had failed to support his opinion with medical records. A May/July 2019 DBQ reflects opinions that it is less likely as not that the Veteran has a current foot disability causally related to, or aggravated by, service. The examiner opined that the Veteran’s foot surgery was due to his Reiter’s syndrome diagnosis, and his Reiter’s syndrome is also clinically linked to his plantar fasciitis. Based on the clinical records, that the Veteran’s multi-joint pain (reactive arthritis/Reiter’s) began in 1998, that pain specific to the foot began in 1999 with a bone spur, and that plantar fasciitis developed several years later post any military service (i.e. in 2012), a negative nexus to service was provided. The examiner noted that the Veteran’s private physician failed to link Reiter’s syndrome to the spurs, and the Board notes that the private physician failed ot even adequately discuss Reiter’s syndrome In addition, the 2019 examiner found that if the Veteran had foot problems related to wearing boots, it should have caused bilateral foot issues, not merely the right foot. Essentially, the Veteran’s foot problems are linked to his nonservice-connected Reiter’s syndrome and were not incurred during AD, INACDUTRA, or ACDUTRA. The examiner provided a thorough discussion of plantar fasciitis and Reiter’s syndrome, why the Reiter’s syndrome likely caused the subsequent plantar fasciitis, and why the right foot surgical procedure was due to reactive arthritis (Reiter’s syndrome).   The claims file also includes a May 2020 DBQ which the Board finds lacks significant probative value. The examiner opined that it is at least as likely as not that the Veteran has a foot disability related to service because he had “X-rays of the right foot in 1999 due to foot pain, so there was onset of foot pain in service.” The examiner also stated that the Veteran was known to have preexistent problems with his foot and ankle from high school and it would be expected that training would worsen these conditions due to impact loading in training which would accelerate degeneration. Essentially, the examiner found that service-connection was warranted for two reasons, but neither is adequate. First, the examiner appears to mistakenly believe that any period of enlistment in the Reserve, even if not INACDUTRA, ACDUTRA, qualifies a veteran for service-connection for a disability which manifests during that period. Second, the examiner states that impact loading in training would accelerate the Veteran’s foot degeneration, but failed to discuss that the Veteran had more non-service days than service days in the Reserve, that he did not have complaints of the foot while on AD or continuously since then for more than two decades, that he had normal feet in 1976, 1983, 1987, and 1993, and that there are no clinical records noting a disability in high school (and even if he had a disability in service, he still did not have complaints of the feet prior to approximately 1999). Moreover, the private examiner failed to adequately discuss the Veteran’s Reiter’s syndrome. The Board finds the opinion highly probative. The absence of pertinent complaints in the service treatment records (STRs) or of persistent symptoms of either disorder – including at time of separation, along with the first evidence of these conditions being many years later, is negative evidence tending to disprove the notion that the Veteran was disabled from either of these disorders during his service. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses “negative evidence” tending to disprove the existence of an alleged fact); see also Maxson v. West, 12 Vet. App. 453 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran’s health and medical treatment during and after military service). Moreover, the most probative medical evidence is against finding the required correlation (“nexus”) between the Veteran’s currently diagnosed plantar fasciitis and any nonsurgical arthritis/DJD of his right foot and his service. See 38 C.F.R. § 3.303(d) (accepting that initial diagnosis may occur after service, but that service connection is still permissible if the evidence, including that pertinent to service, establishes the disability was incurred in service). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his right foot disabilities at issue, including especially in terms of whether related or attributable to anything that occurred during his time in the military, irrespective of whether on AD, ACDUTRA or INACDUTRA. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Although the Veteran is entitled with regard to his AD service to application of certain presumptions in the law that lessen the evidentiary burdens for “veterans” in establishing service connection for disabilities, including the presumptions of sound condition and of aggravation and the presumption for certain chronic diseases becoming manifest within one-year after a period of AD, he is not entitled to these presumptions for his periods of ACDUTRA and INACDUTRA during his reserve service. See Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). The Veteran has not established that an examination was conducted shortly before he entered ACDUTRA or INACDUTRA in 1998 or 1999. Thus, he is not entitled to the presumption of soundness. Moreover, he is not entitled to the presumption of aggravation. Rather, he bears the burden of proof in establishing both that (1) a preexisting disability worsened in service and (2) that such worsening was beyond the natural progression of the disease. See Donnellan at 174-75.   The Veteran has not shown by competent and credible evidence that his current plantar fasciitis and nonsurgical arthritis (DJD) were even present while he served on AD or in the reserves, much less that they were aggravated by that service. Moreover, the evidence shows he was on a limited profile during his last few years in the reserves, and VA examiners have opined that there was likely no aggravation because of that profile. Consequently, the Board finds that the preponderance of the evidence does not establish that his plantar fasciitis and nonsurgical arthritis of the right foot were aggravated during any period of ACDUTRA or INACDUTRA. The Board further notes the Veteran is not entitled to the presumption for certain chronic diseases. Therefore, service connection for his nonsurgical arthritis (DJD), although a presumptive condition listed in 38 C.F.R. § 3.309(a), cannot be based on such presumption. Furthermore, the Board finds that service connection based on chronicity and continuity of symptomatology set forth in 38 C.F.R. § 3.303(b) also is not for application in the present case since the evidence fails to demonstrate that his nonsurgical arthritis was present during any period of AD, ACDUTRA or INACDUTRA.   For all these reasons and bases, the Board concludes that service connection for right foot disability other than heel spurs, osteophytes, and Reiter’s syndrome (to specifically include plantar fasciitis and nonsurgical arthritis) is not warranted as the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence to warrant invoking this doctrine. Service connection, therefore, is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.