Citation Nr: 21030528 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-48 436 DATE: May 19, 2021 ORDER Entitlement to service connection for a right foot disability is denied. FINDING OF FACT A right foot disability did not have its onset in service and is not otherwise related to the Veteran's active military service. CONCLUSION OF LAW A right foot disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right foot disability. The Veteran filed a notice of disagreement (NOD) in April 2016 and a statement of the case (SOC) was issued in September 2016. He perfected a timely appeal in October 2016. In October 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a January 2020 Board decision, the claim was remanded for further evidentiary development. As will be detailed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in March 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Entitlement to service connection for a right foot disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran has asserted entitlement to service connection for a right foot disability, which he contends was incurred during his active military service. See the Board hearing transcript dated October 2019. Specifically, he reports that he developed a right foot disability as a result of a drill instructor hitting him in the foot with a M-14 rifle. Id. For the reasons set forth below, the Board concludes that the preponderance of the evidence is against the claim. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). The Veteran served on active duty from September 1971 to August 1973. The Veteran's Report of Medical History at enlistment noted his endorsement of 'foot trouble.' See the Report of Medical History dated February 1971. Significantly, the Veteran's February 1971 enlistment examination did not document a right foot disability. As such, the presumption of soundness applies to the current claim. See 38 U.S.C. §§ 1111, 1113; 38 C.F.R. § 3.304(b). Service treatment records (STRs) dated in January 1972 documented the Veteran's report of right foot pain due to 'boot irritation.' In July 1972, the Veteran was treated for complaints of sunburn to both feet. The Veteran's August 1973 separation examination does not document any right foot diagnosis or related complaints. The Veteran was afforded a VA examination in June 1998 at which time he reported occasional problems with his shoulder, hips, and knees. He did not report any right foot symptoms at that time. Private treatment records dated in April 2012 document the Veteran's report of a sensation of numbness in his foot. Notably, private treatment records document a diagnosis of peripheral vascular disease (PVD). See, e.g., the private treatment records dated in April 2012 and November 2012. The Veteran was afforded a VA examination in March 2016 at which time the examiner reported that the Veteran does not have a currently diagnosed right foot disability. In a March 2016 medical opinion, the VA examiner reported that the claimed condition "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner noted that the Veteran had right foot boot irritation and sunburn to his feet in service. The examiner stated, "[t]hese were self-limited episodes. He describes an incident in 1971 in which a drill instructor 'took my M-14 and slammed it on my right foot.'" The examiner explained that the Veteran "does not have current foot symptoms or diagnosis. His bilateral leg condition is PVD. There is no evidence of a relationship with the foot episodes in service and development of PVD in his legs years later." At the October 2019 Board hearing, the Veteran described the in-service incident in which a drill instructor hit him in the right foot with a M-14 rifle. See the Board hearing transcript, pg. 3. The Veteran was treated for numbness in the right leg in June 2018. Private treatment records dated in September 2018 indicated that the Veteran was recently hospitalized for sudden onset of pain in the right lower extremity. Pursuant to the January 2020 Board Remand, the Veteran was afforded a VA examination in February 2021 at which time the examiner noted the Veteran's report of right foot pain. The examiner diagnosed the Veteran with right foot tendonitis. The examiner noted the Veteran's report of in-service injury to his right foot caused by his drill instructor hitting him with a rifle. The examiner also documented the Veteran's explanation that his right foot pain has not resolved since his in-service injury. The Veteran told the VA examiner that he was seen by a treatment provider during his military service and was told he had a sunburn to the foot. The February 2021 examiner reported, "Veteran was more concerned about leg pain. He reported his flare up and functional limitation are due to leg pain not foot pain. Veteran kept pointing to his legs, not foot. He was constantly redirected back to right foot as per DBQ." The examiner explained that the Veteran "has known PVD with previous surgeries." In a separate February 2021 VA medical opinion, the VA examiner reported that the Veteran's claimed right foot disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner reviewed the Veteran's medical history and explained that the Veteran's in-service right foot injury was acute. The examiner reported that chronicity of care was not demonstrated by the record. The examiner opined that the Veteran's right foot concerns are secondary to peripheral arterial disease. The examiner explained that the Veteran was seen in October 2017 by a vascular surgeon for acute discomfort of the right foot, treatment records showed that the Veteran was placed "on Gabapentin and the medication helped and the pain had not [re]curred. End of notes diagnosis was peripheral arterial disease symptoms with claudication symptoms with previous SFA angioplasty and stenting for severe claudication." The Veteran was also treated in September 2015 for complaints of right foot cramping related to peripheral arterial disease. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, in the February 2021 VA medical opinion, the examiner found no nexus between the Veteran's military service and his claimed right foot disability. The examiner's conclusions, as expressed in the February 2021 VA examination report and medical opinion, were based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran. The examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the February 2021 VA examiner. See Nieves-Rodriguez, supra; see also Bloom, 12 Vet. App. at 187 (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Given the explanation provided by the February 2021 VA examiner and the fact that the examiner clearly considered all relevant evidence and facts, the Board finds that the VA medical opinion provides an adequate basis for consideration of whether the Veteran's claimed right foot disability is medically related to his military service. Accordingly, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed right foot disability and the Veteran's active duty service outweighs the medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that his claimed right foot disability was due to his military service. To this end, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, February 2021 VA medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for a right foot disability. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.