Citation Nr: 21029977 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-18 532 DATE: May 17, 2021 ORDER The appeal for service connection for a right foot disorder is denied. The appeal for service connection for a left foot disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's bunions, osteoarthritis, degenerative joint disease of the first metatarsal joints, hammertoes, or soft tissues calcifications had onset in service and or are otherwise related to service. 2. The preponderance of the evidence is against a finding that the Veteran's pes planus disability, which was noted upon entry to service, increased in severity during the Veteran's period of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to September 1968 and from August 1969 to February 1970. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 Travel Board hearing. The transcript is of record. The appeal was previously remanded by the Board in July 2018 and January 2020. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 1132 (2012); 38 C.F.R. § 3.304 (b) (2020). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2020). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for right and/or left foot disorders. a. Pes planus Pes planus was noted on the Veteran's August 1959 service entrance examination. Therefore, the presumption of soundness does not attach as to this disability, and the question before the Board is whether the Veteran's pes planus was aggravated by service. For the reasons explained below, the Board finds that it was not. In February 2020, a VA examiner opined that the Veteran's pes planus was not aggravated during service and explained that there was no evidence in the record to indicate that the pes planus worsened during service. The examiner reviewed the Veteran's service treatment records in rendering this opinion, which included the Veteran's service entrance examination, noting "pes planus, marked," and service separation examination which noted "normal" feet, and the corresponding separation report of medical history which noted the Veteran's stress fracture on the right foot. The Board places a high probative value on the February 2020 VA opinion as the examiner based the opinion on review of the evidence during service. There are no competent opinions of record indicating that the Veteran's pes planus worsened during service. The Board acknowledges the Veteran's belief that his pes planus disability worsened during service; however, the Board finds the separation examination finding of "normal" feet and the Veteran's silence regarding pes planus problems at the time of service separation to be more probative than his current statements made in connection with the claim for benefits. In this regard, the separation report of medical history, the Veteran answered "yes" to foot trouble but only mentioned the history of stress fractures during officer candidate school (OCS) and did not mention his pes planus. There is no indication that the stress fractures caused the pes planus symptoms to worsen during service. Based on the above, the Board finds the preponderance of the evidence is against a finding that the Veteran's pes planus was aggravated during service. Therefore, the appeal for service connection for right and left foot pes planus must be denied. b. Foot disorders other than pes planus As discussed above, the Veteran has diagnoses of bunions, degenerative joint disease/osteoarthritis of the first metatarsal joints, hammertoes, and soft tissue calcifications, all bilaterally. See e.g. February 2020 VA examination report. The Veteran asserts that his disabilities are related to service, to include foot-locker races during OCS in which service members were required to run up and down stairs and around the barracks, while carrying their foot-locker. He reported that he slipped and fell several times, hyperextending his foot or twisting the foot. He reported that at one point, he injured his feet such that he required treatment. Transcript pages 4-5. Service records indicate he had stress fractures in his feet. The Veteran reported that when he had the stress fractures, he had to drop out of OCS and continued his service career in a different field, as a laboratory technician. The Veteran reported that his feet continued to be a chronic problem after service, more symptomatic at times than others depending on the activity level and weather changes. Transcript page 14. The Veteran reported that he first sought post-service treatment for his feet in 2005. Transcript page 15. The Veteran also reported that since then, he has received treatment for arthritis generally, not specifically for his feet. Id. The Veteran reported that despite prescription pain medication, which he takes on occasion as needed, he still experiences pain in his feet occasionally. Id. The Veteran reported to the Board that his VA physicians indicated that his forefoot problems are most commonly related to past trauma history, which the Veteran believes to be the events in service. Transcript page 17. The Veteran reported that since service, he has not had a job that was hard on his feet and that he just had normal activity. He reported that he stopped running after he had the stress fractures in service. Transcript page 19. The Board acknowledges that not all of the Veteran's service treatment records were initially in the file. However, following the remand in July 2018, outstanding service treatment records were obtained. The Veteran was provided with VA examinations in September 2019 and February 2020. During the September 2019 VA examination, the Veteran reported that he incurred stress fractures of the 1st and 2nd metatarsals on both feet during service. He described the foot-locker drills that he reported during his hearing before the Board. Specifically, he reported having to run from the upper barracks, down to the ground, around the barracks, and then back up the stairs, while carrying his foot-locker. He reported that the foot-lockers were heavy and that he fell many times on the stairs. He reported that the acute pain of the injuries in service resolved but that later in life, he started having pain again in the metatarsal area. He also reported pain in his feet due to bunions and hammertoes. He reported chronic bilateral foot pain when he stood for even a short amount of time. In the January 2020 remand, the Board noted that the September 2019 VA opinion was inadequate as the examiner did not address all of the Veteran's foot diagnoses and did not provide an adequate explanation for the diagnoses that it did address. In particular, the examiner based the determination that the Veteran did not have continuity of care for the feet following service and did not explain why the same was significant or necessary in order to demonstrate a nexus between the events in service and the current disabilities. Further, the examiner did not indicate consideration of a medical journal article provided by the Veteran, or the Veteran's sworn testimony that that he had chronic foot problems since service with symptoms that varied in terms of severity even though the Veteran did not seek medical treatment shortly after service. Given the inadequacy of the September 2019 VA examiner's opinion, the Board places only a limited probative value on the VA opinion; however, the report is probative with respect to the Veteran's statements. In February 2020, the VA examiner addressed each of the claimed disorders. Regarding bunions and degenerative joint disease of the first metatarsal joints in each foot, the February 2020 VA examiner opined that the disorders were less likely than not related to service, to include the reported foot-locker races and documented stress fracture in service. The examiner explained that flat feet was the more likely cause of the disabilities, explaining that flat feet moves the transmission of force medially as the weight is transferred forwards on to the walking foot. This can stretch the soft tissues behind the medial malleolus (the posterior tibial tendon and posterior tibial nerve) which can lead to tendinopathy and nerve entrapment. The collapsed arch can also stretch the spring ligament and plantar fascia, leading to plantar fasciitis. Compensatory abduction of the forefoot, together with altered transmission of weight through the foot, can lead to hallux valgus, a.k.a. bunions, and degenerative joint disease of the first metatarsal. Regarding hammertoes, the February 2020 VA examiner opined that the disorders were less likely than not related to service, to include the reported foot-locker races and documented stress fracture in service. The examiner explained that a hammer toe is a flexion (bending) contracture of one or both joints of the second through fifth toes and is a deformity of the proximal interphalangeal joint (PIPJ) of the toe causing it to be permanently bent and resemble a hammer. The examiner noted that the contracture of the toes can be flexible (reducible) at first and can get rigid (non-reducible) as the deformity progresses. The examiner determined that the Veteran's hammertoes were caused by the Veteran's preexisting flat feet. Regarding soft tissue calcifications, the February 2020 VA examiner noted a December 2015 VA treatment record that described the soft tissue calcifications or gout. The examiner determined that the Veteran's gout was not related to the stress fractures from the locker races. The examiner explained that gout is a form of inflammatory arthritis characterized by recurrent attacks of a red, tender, hot, and swollen joint. The examiner explained that pain typically comes on rapidly, reaching maximal intensity in less than 12 hours. The examiner also explained that the joint at the base of the big toe is affected in about half of cases and may also result in tophi. In an August 2020 VA addendum opinion, the examiner explained that there were stress fractures in both feet in the first and second metatarsals during service, in 1968, but that the acute symptoms at the time, resolved. The examiner noted that the Veteran developed foot pain again, later in life. The examiner noted that there was no current evidence of stress fractures. The examiner explained that in the right foot, there were degenerative changes at the right first metatarsal joint and in the left foot, there was gouty tophi medial to the first metatarsal joint. The examiner also noted that the Veteran's current pain is from a bunion on the right and gout on the left. The examiner noted that she had considered the medical journal article provided by the Veteran as well as the Veteran's statements regarding chronic foot symptoms. The Board places a high probative value on the February 2020 and August 2020 VA opinions as the examiner provided thorough rationale for the opinions rendered. The Board acknowledges that the August 2020 VA examiner based her opinion, in part, on the premise that the Veteran's foot pain in service resolved and that he developed foot pain again later in life. The Board finds this to be consistent with the Veteran's report to the September 2019 VA examiner. The Board places a high probative value on the February 2020 VA examiner's opinion that the Veteran's bunions and degenerative joint disease of the first metatarsal joints, in each foot, are more likely related to the non-service-connected pes planus. In this regard, the examiner explained the mechanics of the foot, and how motion and weight shifting, with pes planus, can lead to bunions and degenerative joint disease of the first metatarsal. There are no competent opinions of record in favor of the claim with respect to any of the diagnosed disorders. The Board acknowledges the Veteran's statements regarding "chronic" foot symptoms. However, the Veteran also reported that his acute symptoms in service resolved and that foot pain returned later in life during the September 2019 VA examination. In the same report to the September 2019 VA examiner, the Veteran reported experiencing "chronic" pain when he stands for a long time. Given the inconsistencies in the Veteran's statements, the Board finds the assertions of continuity of symptoms since service to be not credible. The Board acknowledges the Veteran's belief that he has right and left foot disorders related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology of left and right foot disorders, including bunions, osteoarthritis, degenerative joint disease of the first metatarsal joints, hammertoes, soft tissue calcifications, 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) (lay persons not competent to diagnose cancer). Based on the foregoing, the appeals for service connection for a right or left foot disorder must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.