Citation Nr: 21024154 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-16 447 DATE: April 22, 2021 ORDER Entitlement to service connection for a left foot condition is denied. Entitlement to service connection for a right hip condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that his left foot condition was caused by active service. 2. The preponderance of the evidence is against a finding that his right hip condition was caused by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2017); 38 C.F.R. § 3.303, 3.310 (2019). 2. The criteria for entitlement to service connection for a right hip condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2017); 38 C.F.R. § 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from June 1980 to December 1982. This matter was previously before the Board in May 2019. The Board remanded on these issues to afford the Veteran VA examinations, as he had not received an examination for either condition. Moreover, the Board determined that etiology opinions were also needed. The matter returned to the Board in December 2020, where it was remanded again for additional development. The Board determined that the VA examinations were inadequate for adjudicative purposes. Such development has been completed and the matter is once again before the Board for further appellate review. 1. Entitlement to service connection for a left foot condition. 2. Entitlement to service connection for a right hip condition. The Veteran appeals the denial of service connection for a left foot and right hip conditions. For the following reasons, the Board finds that service connection for a left foot condition and right hip condition are not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, 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). For some “chronic diseases,” presumptive service connection is available.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With “chronic disease” shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b). For the showing of a ‘chronic disease’ in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic disease’ became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term “chronic disease,” whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is deemed a chronic disease under 38 C.F.R. § 3.309(a). Additionally, with chronic disease shown as such in service (or within the presumptive period) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote are also service connected, unless clearly attributed to intercurrent causes. Moreover, if chronicity in service is not adequately supported, a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b). The Veteran has testified to chronic left foot and right hip pain since service. Specifically, the Veteran asserts that he has pain since his 1981 fall during service. The Veteran’s service treatment records (STR) reflect that the Veteran sought treatment for a left foot and right hip pain. See January 1981 STR; March 1981 STR. The Veteran’s subsequent records were silent for additional complaints or treatments related to his left foot and right hip. Upon discharge, the Veteran specifically denied foot trouble, arthritis or rheumatism, bone, joint or other deformity, stating that he was in “good health.” See February 1982 Report of Medical History. Upon examination, his lower extremities and feet were deemed clinically normal. See February 1982 Report of Examination. The Veteran was afforded a VA examination in December 2019 for his left foot and right hip disabilities. The examiner opined that the current disabilities were not incurred or caused by military service. However, no rationale was provided. The Board determined that the examination was inadequate for adjudicative purposes. Therefore, minimal probative value is placed on this examination. The Veteran was afforded a second VA examination in January 2021. The examiner opined that his left foot condition and right hip condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Regarding the right hip, the examiner reasoned that prior to 2017, the record did not contain medical records seeking treatment for any right hip condition. The Veteran’s 2017 medical records reflected that no gross deficiencies were noted. Additionally, there was no discomfort with range of motion and no trochanteric tenderness, but there was tenderness to palpation at hip extensor attachment. In a 2019 treatment record, the Veteran’s gait was deemed normal. The VA examiner also noted that the Veteran’s lower extremities were deemed normal at service discharge. Regarding his left foot condition, the examiner reasoned that the evidence of record did not contain any treatment related to his left foot. The only documentation of any left foot pain in the Veteran’s medical records were his December 2019 examination, with a diagnosis of plantar fasciitis. The examiner stated that the “mechanism of left foot twisting and/or falling injury was not sufficient to result in the currently manifested disorders after service,” and there was “no medical reason to accept the Veteran’s belief that his current disorders are related to the ladder fall injury.” Lastly, regarding the etiology of the Veteran’s left foot, the examiner stated that “even though plantar fasciitis can develop without an obvious cause, some factors can increase your risk of developing this condition,” including age, weight, certain types of exercises, and occupation. The examiner reasoned that the Veteran’s age and his 42-pound weight gain can contribute to his plantar fasciitis. Additionally, his occupation as a gardener “would have [him] on his feet for some time for work.” The factors discussed would predispose him to plantar fasciitis. Additionally, a foot twisting injury is not a primary risk factor for developing plantar fasciitis. The Veteran’s claims file does not contain any competent evidence indicating that his left foot and right hip disorders are attributable to service. Rather, a medical examiner at the Veteran’s separation examination found no chronic disabilities involving the left foot or right hip. According to the Veteran’s medical records, the earliest treatment sought was in 2017, which was over 30 years after service. In a 2016 private treatment record, the Veteran’s physician stated that he “had no pain with gentle internal and external rotation of the left and right hip.” See April 2016 Private Treatment Records. The Board has considered the Veteran’s lay statements and notes that he is competent to report his symptoms and the circumstances surrounding his left foot and right hip conditions. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, the specific issue in this case—the etiology of orthopedic disorders—falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Veteran’s lay assertions regarding medical nexus are not competent or probative in this appeal. Overall, the Board finds that the January 2021 examination is probative and persuasive as to the etiology of the Veteran’s disabilities. The expert medical opinion was prepared by a skilled and neutral medical professional after review of the claims file and examinations of the Veteran, as appropriate. Collectively, the VA medical opinion is supported by a complete and factually accurate explanatory rationale and there is no other medical opinion to the contrary. Furthermore, as addressed below, the Board finds that the opinion was based on accurate factual predicates as determined by the Board – including no continuity of symptomology since discharge. Lastly, the Board has considered the Veteran’s claim under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) pertaining to continuity of symptomatology. However, it is not warranted as the most credible lay evidence establishes that chronicity first began many years after service. The Veteran specifically denied foot trouble, arthritis or rheumatism, bone, joint or other deformity at his separation examination. The Board affords this statement significant probative weight as it was made to a medical examiner in the context of identifying any medical disorders at the time of separation from service. See generally Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). At his hearing, when asked about chronicity of symptoms relating to his right knee, right thigh and left foot, the Veteran responded “The knee, I did.” To the extent he currently recalls persistent or recurrent symptoms of the left foot and/or right thigh or hip, the Board finds that his denial of chronic symptoms at separations holds more probative weight. As such, there also no credible lay or medical evidence establishing the onset of arthritis within one year of service discharge of either period of service. Additionally, plantar fasciitis is not a “chronic” disease as set forth in 38 C.F.R. § 3.309(a). As such, any of his assertions alone cannot support an award of service connection pursuant to 38 C.F.R. § 3.303(b), see Walker, 708 F.3d at 1331, or pursuant to the presumptive provisions of 38 C.F.R. § 3.309(a). The preponderance of the evidence is against the claims. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 61 (1991). The Veteran’s appeal seeking service connection for a left foot condition and right hip condition are denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.