Citation Nr: 21029630 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-31 497 DATE: May 14, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral foot disability began during the Veteran's active military service or is otherwise related or attributable to her service, including to any disease, injury or event in service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a bilateral foot disability. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1983. This appeal to the Board of Veterans' Appeals (Board) is from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in October 2016 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board remanded this claim back to the RO in February 2019 for further development and consideration including to obtain all outstanding treatment records relevant to this claim and to have the Veteran reexamined to clarify the diagnosis and etiology of all current foot disabilities, particularly in terms of whether related or attributable to her military service. The Board again remanded this claim in December 2020 to obtain newly identified private treatment records and all outstanding VA treatment records. Those remand instructions since have been completed, as directed. See 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) (holding 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). Entitlement to service connection for a bilateral foot disability The Veteran contends that her bilateral foot disability was caused by wearing boots and marching during her service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain diseases, including arthritis, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here, though, there is no probative evidence showing any qualifying chronic foot disability onset within one year of the Veteran's separation from service, meaning by January 1984, so the presumptive provisions do not apply to the facts of this case. A March 2012 VA x-ray confirms the Veteran has osteoarthritis in her feet, but that was first indicated many years after conclusion of her service, well beyond the presumptive period. The report of a May 2013 VA examination shows diagnoses of bilateral degenerative plantar and posterior calcaneal enthesopathy, mild first metatarsophalangeal joint osteoarthritis with hallux valgus in her right foot, and mild midfoot osteoarthritis in her left foot. An October 2016 private treatment record shows a diagnosis of left foot plantar keratoma. The report of the December 2019 VA examination shows diagnoses of bilateral pes planus (flat feet), bilateral hallux valgus, right midfoot osteoarthritis with degenerative plantar and posterior calcaneal enthesopathy, and left foot degenerative plantar posterior calcaneal enthesopathy with first metatarsophalangeal joint osteoarthritis. But, while there is no disputing the Veteran has these several diagnoses referable to her feet, so current disability owing to same, there is not also the required attribution of her disability to her military service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records (STRs) show she had just one complaint of numb feet in July 1981 over the course of her 3 years of total service. Unfortunately, there is no separation examination of record despite multiple attempts to obtain a copy. Her service ended in January 1983. The Veteran submitted private treatment records from September 1992, so from some 9 years later, showing that she had suffered a right ankle fracture that was treated with surgery and physical therapy. But her right ankle fracture was caused by roller skating, so not the result of wearing boots and marching during her service. The March 2012 VA x-ray already referenced, which was taken because of the Veteran's complaints of bilateral heel pain of two years' duration, as mentioned confirmed she has osteoarthritis in both feet. But, according to this record, her bilateral heel pain onset in 2010 or thereabouts, so not until some 27 years after her separation from service. In May 2013, the Veteran underwent a VA foot examination. This examiner diagnosed bilateral degenerative plantar and posterior calcaneal enthesopathy, mild first metatarsal phalangeal (MTP) joint osteoarthritis with hallux valgus in the right foot, and mild midfoot osteoarthritis in the left foot. Ultimately, however, this examiner concluded that it was less likely than not the Veteran's bilateral foot disabilities had onset during her service or were caused by her service. The rationale was that her STRs show only the one complaint of foot pain/numbness. In July 2015, the Veteran submitted a written statement concerning her bilateral foot disability. She stated that she had submitted STRs showing care for foot disabilities at two duty stations including a limited duty profile due to foot pain; however, the STRs and service personnel records (SPRs) showing this are absent. Despite the absence of these records, she is competent to report the circumstances of her service. She reiterated that her foot problems had onset during her service and had continued since. During her October 2016 hearing before this Board, the Veteran testified that she believes that wearing boots during her service caused her flat feet, and that, after her separation from service, someone had made this diagnosis of flat feet. She further testified that marching would hurt her feet and cause blisters and that she was treated for callouses on her feet. She stated that her foot problems did not onset until her service, and that she has been experiencing symptoms, including foot pain, since her service. An October 2016 private medical record shows the Veteran received treatment for painful calluses on both feet, but this record does not discuss the etiology of her foot problems including in terms of whether related or attributable to her service. The Board's February 2019 remand of this claim found that the May 2013 VA examiner's rationale was inadequate because that examiner did not consider the Veteran's lay statements, namely that she had foot pain that onset during her service and that has continued since. In October 2019, the Veteran submitted an additional written statement again proclaiming that her foot pain onset during her service and has worsened during the years since. Further, she explained that she did not file a VA claim earlier because she thought her foot disabilities would resolve, but they did not. In December 2019, pursuant to the Board's remand directive, the Veteran underwent an additional VA foot examination. The examiner confirmed diagnoses of flat feet, hallux valgus, and osteoarthritis. But, just as the earlier examiner had concluded, this more recent examiner opined that it is less likely than not the Veteran's bilateral foot disabilities onset during or are due to her active service. The rationale was that her STRs show no documented foot joint pain or joint deformities or abnormalities. Further, according to this examiner, the earliest foot pain complaints were in 2012, which is 29 years after the Veteran's separation from service. Her military records do not support an onset during her service and, further, added this examiner, the Veteran's diagnosed foot disabilities commonly develop with advancing age and progression over time, and the specific radiographic findings of both feet from 2012 support this being the likely etiology when combined with an onset around 29 years after her separation from service. The December 2019 examiner goes on to explain that, despite the Veteran's subjective complaints of continuous foot pain since service, "medical understanding of the pathophysiology of the development of these foot disorders is consistent with a process that developed over many years and most likely during those 29 years after service; there are no objective findings or documentation in her STRs that would provide any temporal support/relationship for military onset." Also, there are no medical treatment records from the 1980s after her separation from service lending any temporal link to her claim, and she reported working in labor occupations during the interim 29 years, including prolonged standing and walking, which is consistent with likely development of such foot diagnoses as hers. In December 2020, the Board again remanded this claim to try and obtain private treatment records the Veteran had identified as potentially relevant to her claim and her updated VA treatment records. Consistent with these remand directives, the RO sent her a VA Form 21-4142a, General Release for Medical Provider Information, which would allow VA to obtain her confidential private treatment records. But she did not return the needed medical release form. She did, however, provide a signed VA Form 21-4142 for a different private provider and submitted copies of those private treatment records. These private treatment records date from September 1992 and show treatment for a right ankle fracture. But these records do not show any treatment for a disability referable to her feet, much less owing to her prior service. In fact, these records show that, in September 1992, she hurt her ankle while roller skating, which is inconsistent with her reports of constant foot pain since her separation from service in 1983. Overall, treatment records show the Veteran was not diagnosed with her foot disabilities until around 2012, some 29 years after her separation from service. While she is competent to report having experienced symptoms of bilateral foot pain consistently since her service, she is not competent to provide a diagnosis in this case or determine that her symptoms were manifestations of her current foot disabilities. This issue is medically complex, not merely simple, as it requires knowledge and interpretation of complicated diagnostic medical testing, such as x-rays. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the May 2013 and December 2019 VA examiners' opinions tend to refute any notion that the Veteran's foot disabilities are attributable to any injury, event, or disease during her service, including to the isolated instance of foot pain or numbness she experienced in service or having to wear boots and march. Both VA examiners disassociated the Veteran's foot disabilities from her service and provided the required explanation again, especially if the opinions are considered collectively rather than piecemeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, even the private treatment records submitted by the Veteran show that, despite her statements that she has had foot pain continuously since her service, she was roller skating in 1992 when she hurt (fractured) her ankle. While the Board is certainly sympathetic to her situation, simply put, the objective medical evidence of record is more probative than her lay statements. The statements recorded in her treatment records were made in furtherance of medical treatment, in contrast to statements made to VA for purposes of obtaining disability benefits and compensation, such as her hearing testimony and written statements. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. Consequently, the Board gives more probative weight to the medical treatment records and the VA examiners' opinions against the claim. See 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). As such, service connection for a bilateral foot disability is not warranted. There is not a relative balance of evidence for versus against the claim to warrant invoking the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.