Citation Nr: 21021805 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-22 555 DATE: April 14, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. FINDING OF FACT A bilateral foot disability did not manifest in service and is not attributable to service. CONCLUSION OF LAW A bilateral foot disability was not incurred or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant was a member of the National Guard and had active duty for training (ACDUTRA) from June 1981 to August 1981. The appellant is not service connected for any disability and is not a Veteran for VA compensation purposes. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral foot disability The Appellant asserts that he injured his feet during basic training, which occurred from June 1981 to August 1981. In the context of Reserve or National Guard service, the term active military, naval, or air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated the in line of duty. 38 U.S.C. § 101; see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101(24), 106, 1110, 1131. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. A July 1981 treatment record shows that the Appellant had been in training for two weeks and complained of pain in the right foot. The Appellant’s boot was irritating the right foot without swelling. The assessment was boot irritation. A December 2014 private treatment record shows an assessment of plantar fibroma and palmar fibroma. There was no limitation during range of motion testing, lesion, tenderness of palpation, and sensation was normal, excepting sharp/dull sensation bilaterally. An additional treatment note indicates growth on foot, present for a year with no treatment. System review was negative for any problems. A treatment record from May 2020 found hammer toes, calcaneal cavus, and calcaneal spurring. A July 2020 VA examination report with opinion noted the only supporting evidence of a foot disorder was from July 1981 where the Appellant was seen for right foot pain. The note indicates irritation on the top of the foot with no swelling and no discoloration. There is no further documentation of a foot condition until 2014, when he is seen by a podiatrist. He was diagnosed at that time with plantar fibroma of the foot. The next evidence is from 2015 when the claim was filed. The next record found is from May 2020. There is no record of a left foot disorder in 1981 and there is no lay or medical evidence found regarding a chronic foot disorder of the left or right foot for 33 years after his service. The first record of a foot condition post service is from 2014 as noted above, 33 years later. Additionally, that foot condition is not at all related to the dorsal (top) of the right foot, as noted in 1981. In 2014, there is no mention of any pathology on the dorsum of either foot. The Appellant has hammer toes, calcaneal cavus, and calcaneal spurring consistent with the examination in 2020. The plantar fibromas were not during the VA examination or on treatment note dated in May 2020. The examiner found there was no lay or medical evidence of chronicity, having a 33-year silence of records with regard to the feet, and no medically explainable connection between the right foot dorsal irritation during his service and the development of the current hammer toes, calcaneal spurring or calcaneal cavus foot. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Appellant is competent to report pain, abnormal growth, and visual changes to the foot. However, the Appellant is not credible. When he was seen in 2014, his current foot disorders did not exist. Instead, he had a different foot abnormality. This abnormality was not found to be disabling, as there was no functional impact at the time. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. Apr. 3, 2018) (holding disability refers to the functional impairment of earning capacity, not the underlying cause of said disability). At this time, there was no functional impairment caused by a foot disorder reported in treatment records during the relevant period. In contrast, the Board finds that the VA medical opinion to be more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. The examiner determined that the current disorder was unrelated to the problem in 1981 and involved a different part of the foot and there was no treatment for the left foot in the National Guard. The examiner had knowledge of the Appellant’s history, examined the Appellant, reviewed all the private and the military treatment records, and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. The probative evidence shows there is a multi-decade gap between the complaints in 1981 and the emergence of a current disabilities. There is no indication in the 1981 treatment records that the Appellant had anything besides foot irritation. When the Appellant was first treated for a foot issue in 2015, there was no mention of the current disorders. Even at that time in 2015, the foot abnormality was of recent onset (approximately one year prior). Any statement to the contrary is unsupported by the evidence of record and are not probative. As a result, the benefit-of-the-doubt doctrine is not applicable and the claim of entitlement to service connection must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.