Citation Nr: 21026494 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-66 468 DATE: May 3, 2021 ORDER Entitlement to service connection for a left foot disability is denied. FINDING OF FACT 1. A current left foot disability was not manifest in service or within one year of separation from service and is not otherwise related to service. 2. A left foot disability was not caused by or aggravated by a service-connected disease or injury. CONCLUSION OF LAW 1. A left foot disability was not incurred in or aggravated by service and a chronic disease may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A left foot disability is not proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision. In December 2019, the Board remanded this matter for further development. 1. Compliance with previous remand instructions and the duty to assist. Preliminarily, the Board will address whether the prior remand instructions have been substantially complied with and whether VA's duty to assist requires additional effort to obtain relevant private treatment records and to provide a new VA examination and opinion. In December 2019, the Board remanded the claim for service connection for a left foot disability to obtain outstanding VA and private medical records, to obtain disability and income records from the Social Security Administration (SSA), and to provide the Veteran a VA examination and opinion to determine the nature and etiology of any current left foot disability. Updated VA treatment records have been associated with the claims file. In January 2020 VA mailed the Veteran a VA Form 21-4142 and requested the Veteran identify private treatment providers who were treating any left foot disability. The Veteran did not respond. The Veteran was sent another VA Form 21-4142 in August 2020 and asked to identify the name and location of any VA or private medical facility where he received treatment for the left foot disability. The Veteran did not respond. SSA records were also requested in January 2020. In March 2020, VA received a reply from SSA indicating that no records for the Veteran existed. The Veteran was notified of the negative SSA response in an October 2020 letter, and VA requested the Veteran submit any relevant SSA records in his possession. The Veteran did not respond. A March 2020 correspondence indicates the Veteran did not attend VA examination that had been scheduled in March 2020. The record shows that another examination request was made in July 2020. This examination was not conducted. A November 13, 2020 Report of General Information indicates that the Veteran indicated he did not want to schedule an examination for his left foot because "[t]his doesn't matter anymore. I have been rated at 100%." and that the Veteran wanted the claim for a left foot disability to be sent back to VA. A November 16, 2020 Report of General Information shows the Veteran advised he did not wish to attend an examination for his left foot, and that since he was receiving benefits at the 100% rate he was satisfied. He expressed desire to withdraw the appeal, but that it would be difficult for him to write a written withdrawal. He requested that VA render a decision based on the record without an examination. Here, VA obtained updated VA treatment records and made two requests for any private records. SSA records were requested directly from SSA and from the Veteran. The SSA request was negative, and the Veteran did not respond to his request. While VA attempted to schedule the Veteran for a new examination and opinion for his left foot, the Veteran refused to attend and requested a decision be made without a new VA examination or opinion. Based on the foregoing, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). We acknowledge that the duty to assist requires VA to make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, including private medical records. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. See 38 C.F.R. § 3.159 (c)(1). Here, VA sent the Veteran an initial request and a VA Form 21-4142 to obtain relevant private medical records in January 2020 and a second request in August 2020. No response was received. The request for SSA records revealed no such records existed, and the Veteran did not respond to a followup request requesting that he provide any SSA records in his possession. Furthermore, the Veteran notified VA that he did not want a new examination for his left foot and requested that a decision be made based on the evidence of record without an examination. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). VA made sufficient attempts to obtain all information requested by the December 2019 remand instructions. Sufficient attempts were made to obtain the requested information. Additional followups would be futile. VA satisfied its duty to assist despite not obtaining the requested private treatment records and being unable to provide a new examination or opinion for the Veteran's left foot. Per his request, the Veteran's claim will be adjudicated based on the current record. 2. Service connection for a left foot disability. The Veteran seeks service connection for a left foot disability. He contends that a left foot disability is related to in-service complaints relating to his feet. Alternatively, he contends a left foot disability is secondary to his service-connected arthritis of the right shoulder, right knee, right ankle, cervical spine, thoracolumbar spine, and left ankle. See, e.g., December 2019 Brief. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 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. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). 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; 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). After reviewing the evidence, the Board concludes that service connection for a current left foot disability is not warranted. Service treatment records show the Veteran reported pain in his left big toe in June 1968. Medical examinations dated August 1969, November 1969, July 1971, and October 1973 show clinically normal evaluations of the feet. The Veteran denied any history of foot trouble in each corresponding report of medical history. He reported that the bottom of his feet hurt in June 1984. At a followup appointment he reported that his right leg was swollen, his left leg and foot hurt, and that his neck hurt. The clinical assessment was "arthralgia? r/o gout." A July 1984 rheumatology referral note shows the Veteran complained of bilateral heel pain, and he reported pain in his heel that felt like a bruise. August 1984 x-rays of the heels showed no abnormality, and x-rays of both feet showed no bone or joint abnormalities. Tinea pedis was noted on the February 1986 retirement examination, and the Veteran reported a history of foot trouble on the February 1986 report of medical history. A note appending the separation report of medical history and examination report reflects the Veteran's report of foot trouble referred to arch pain in 1979, that the Veteran used arch supports and then switched to a different type boot which has had good results with no problems since. He had Cortizone shots for arthritis in his right knee, ankle, elbow, and shoulder in 1984. An October 1996 VA treatment records show the Veteran reported a history of left foot arthritis. There are no contemporaneous x-rays of the Veteran's left foot. Thick, painful and mycotic toenails were noted in November 2008. VA treatment records reflect ongoing foot care for the toenails. The Veteran was provided a VA examination for foot conditions in June 2016. The Veteran reported that he developed left ankle pain while on active duty and denied a foot condition. The examiner determined that the Veteran did not have a current diagnosis associated with any foot condition. The examiner opined that a left foot disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran does not have any evidence in the service treatment records of a left foot condition and did not claim a left foot condition. Therefore, it is less likely as not that a left foot condition was incurred or caused by an in-service injury. A June 2016 VA x-ray shows a left plantar calcaneal spur. VA podiatry notes show complaints of thick, painful toenails and diagnoses of mycotic nails. An April 2017 record notes bilateral ingrown great toenails, mycotic nails, and hammer toes. A May 2017 x-ray of the Veteran's left ankle showed mild degenerative changes of the subtalar ankle joint and a small inferior calcaneal spur of the left heel. July 2017 podiatry notes show the Veteran complained of thick, painful toenails. He was assessed with mycotic nails and hammer toes. A September 2017 record shows ingrown great toenails. A September 2019 VHA Choice Approval record notes a provisional diagnosis of tinea unguium and onychomycosis of both great toenails. Initially, we note that arthritis is a chronic disease. The Board finds that the Veteran does not have left foot arthritis. We acknowledge that service treatment records reflect diagnoses of arthralgia and arthritis, and that the Veteran reported foot pains while he was being treated for the arthritis for which he is already service connected. Furthermore, the October 1996 treatment record notes a history of arthritis of the left foot. However, arthritis of the left foot was not shown during service or at any point relevant to the appeals period. Foot and heel x-rays during service were negative for any abnormalities. Despite the 1996 diagnosis, more recent x-rays have not shown arthritis. June 2016 left foot x-ray showed the left foot was normal with unremarkable joints. The May 2017 x-ray showed degenerative changes in the left ankle and a calcaneal heel spur. X-rays have been negative for any arthritis of the left foot. We note the Veteran is already service connected for the left ankle arthritis. There is no competent, credible evidence that the Veteran currently has arthritis of his left foot. While the Veteran is competent to report symptoms such as pain, the presence of arthritis is not subject to lay observation. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). We do note that the Veteran has not generally contended that he has arthritis in his left foot. The preponderance of the evidence is against finding the Veteran has arthritis of the left foot (a valid, supported diagnosis), and there is no evidence of another "chronic" disease under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). As a result, the provisions of 38 C.F.R. § 3.303 (b) are not applicable. Per the available VA treatment records, the Veteran currently has a calcaneal spur on his left heel and hammered toes. He is currently being treated for thick, painful toenails and a fungal infection diagnosed as tinea unguium and onychomycosis of the left great toenail. The preponderance of the evidence is against finding that any of these disorders were incurred in service, are otherwise related to service, or are related in any way to a service-connected disease or injury. There is little evidence that any of the Veteran's current left foot disorders were present during service. Although he complained of left big toe pain in 1968, no such pain was complained of again and foot pathologies were absent in multiple subsequent examinations and medical histories. No hammer toes were identified during service. We accept that the Veteran had heel pains during service. However, contemporaneous x-rays of the heels showed no abnormalities, indicating that the current calcaneal spur was not present during service. the first evidence of a calcaneal spur was the June 2016 x-ray, suggesting the spur manifested many years following separation from service. While tinea pedis was noted at separation, current treatment records do not show tinea pedis. The Veteran currently has tinea unguium and onychomycosis of the left great toenail, neither of which were documented during service. Both were first noted in 2019, over 30 years after he separated from service. The Veteran's decision to not report for examination prevented VA from obtaining an opinion to determine whether there was a relationship between the post-service findings and the in-service finding. Although the Veteran's representatives have argued that the Veteran received injections for a left foot disability during service, such fact, even if accurate does not establish legally chronic or medically chronic disability during service. Regardless, the records indicate he received Cortizone injections for his right knee, ankle, elbow, and shoulder. The current left foot disorders were first reported in the record years after service and have not been attributed by any competent evidence to service. While the Veteran had foot complaints in service, no health care provider has opined that any current foot pathologies are related to the in-service manifestations or are otherwise related to service. We note that the June 2016 VA nexus opinion is of lessened probative value. While the Veteran denied any left foot disability at the time of the examination, service treatment records clearly reflect the Veteran complained of left foot pains during his service and had tinea pedis at separation. Furthermore, subsequent records show the presence of left foot disabilities. VA treatment records show a left calcaneal spur, hammer toes, and fungal infections of the left foot.. As explained above, VA attempted to provide the Veteran with another examination and opinion to determine the nature and etiology of any current left foot disability. The Veteran instead instructed VA to adjudicate his claim without further examination. However, we do find it probative that the Veteran denied any current left foot problems when asked by the 2016 examiner. While the Veteran had foot pain during service, his denial of such pains at the VA examination suggests the foot symptoms that were present during service were not present in October 2016. The VA treatment records reflects no complaints relating to heel pain or general left foot pain. Podiatry records refer solely to painful toenails, which no evidence relates to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. Furthermore, his decision to not attend a VA examination hampers our ability to enter a fully informed decision. Regarding secondary service connection, the Veteran has not provided competent evidence beyond his suggestion that a left foot disability is secondary to his service-connected arthritis. The Board finds that neither the Veteran nor his representative are Veteran is competent to address this etiological issue. Making such a connection would require specialized education, training, or experience that the Veteran and his representative have not been shown to possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These statements are not competent evidence that a left foot disability is proximately due to, the result of, or increased in severity because of a service-connected disease or injury. VA treatment records are absent any relationship between a current foot disability and his service-connected diseases and injuries. There are no other medical records that suggest a left foot disability is associated with another service-connected disease or injury. The Veteran did not respond to requests to provide potentially relevant private treatment records, and he did not want another VA examination or opinion. We have considered an article that the Veteran's representative cited in a December 2019 brief. The article was published on healthline.com and is titled "Everything You Need to Know About Heel Spurs. The article provides that heel spurs "may" have a variety of causes which, as the Veteran's representative noted in the December 2019 brief, include arthritis, walking, running, or jumping on hard surfaces. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509 (1998); 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Medical articles can provide important support when combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 314, 317 (1998). Here, the Board finds the cited article to be of little to no probative value. Treatise evidence must "not simply provide speculative generic statements not relevant to the veteran's claim." Wallin, 11 Vet. App. at 514. While potentially relevant to the Veteran's claim, the article provides general information that is speculative insofar as the article states that heel spurs "may" have many different causes. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30 (1993). Furthermore, this treatise information is not accompanied by corresponding clinical evidence or a competent medical nexus opinion specific to the Veteran. Neither the Veteran nor his representative have been shown to be competent to opine as to a relationship between the Veteran's service, or a service-connected disease, and the bone spur. We again note the Veteran's decision to not appear for an examination. For the foregoing reasons, the Board concludes that service connection for a left foot disability is not warranted. The Veteran's current left foot disabilities were not present during service, and there is no probative evidence showing a relationship between a current left foot disability and service. The more probative evidence shows the Veteran does not have arthritis of the left foot. There is no competent evidence that a left foot disability is proximately due to, the result of, or aggravated by a service-connected disease or injury. The preponderance of the evidence is against the claim, and service connection for a left foot disability, is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.