Citation Nr: 21030893 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-27 703 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral foot disability is denied. FINDING OF FACT The Veteran's bilateral foot disability was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran's bilateral foot disability is etiologically related to an event, injury, or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to July 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a VA Regional Office (RO). In September 2019, the Board remanded for additional development of a nexus opinion. Specifically, the Board requested that the VA examiner consider the Veteran's reports of onset of symptoms during and since service. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for bilateral foot disability is denied. Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran contends that he currently suffers from bilateral foot disabilities to include bunions and hammertoes that began during service. Specifically, the Veteran asserts that his bilateral foot disabilities began after wearing incorrectly sized boots during basic training resulting in blistered bunions and fractures. The Veteran's service treatment records are silent for reports, treatment, or diagnosis of any foot disabilities. The only documentation of record occurs in September 1975 which notes that the Veteran's boot size was incorrect by a half size and a "boot exchange" was recommended. The Veteran's separation examination in March 1978 indicated that the Veteran's feet were normal and the Veteran himself reported "I am in good health". After service, the first documented medical treatment for the Veteran's feet began in 2013. Veteran underwent several diabetic feet exams which reported that visually his feet were normal however, it was noted that he required diabetic footwear and that his bunions were worsening. See June 2013 CAPRI. Private treatment records from February 2014 contain reports by the Veteran of a history with bunions and hammertoes going back twenty years. The Veteran also reported the onset of symptoms beginning in the service when he wore a pair of boots that were too small. The private podiatrist went on to diagnose the Veteran with bilateral hallux valgus and hammertoes in February 2014. The Veteran was afforded a VA examination and medical opinion in May 2016 in which the examiner opined that his claimed bilateral foot disabilities were less likely than not incurred in or caused by military service. The examiner noted that during service, the Veteran wore an incorrectly sized boot for a couple months and that his separation examination indicated that his feet were normal. She further noted that a private podiatrist in 2014 indicated that the Veteran reported his foot problems started in 1994 "which is sixteen years after service". She concluded "therefore, it is less likely as not that Veteran's current bilateral foot condition is caused by the incorrectly size[d] boots that were worn during service for two months". Upon remand by the Board, the VA examiner provided an addendum medical opinion in January 2020. Once again, the examiner found that the Veteran's claimed bilateral foot disabilities were less likely than not incurred in or caused by in-service injury, event, or illness. The examiner noted that the Veteran needed to exchange his boots in 1975 for a different size. However, the examiner reported that there was no medical evidence that the Veteran developed a foot condition "such as bunions or hammer toes during or one year after service as exit exam is negative for foot problems". The examiner thus concluded, "it is less likely as not that the Veteran's disability of his bilateral feet had its onset during or is otherwise related to the Veteran's service". In determining whether the record reflects that the Veteran's bilateral foot disabilities are related to his service, the Board acknowledges the Veteran's belief that there is such a causal connection as well as his own description of in-service incurrence of a bilateral shoulder condition. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469(1994). The Veteran is certainly competent to describe the circumstances of his military duties, the pain he felt during service, and the pain he felt since service. Competency and credibility, however, are two distinct inquiries. Whereas the former is a threshold legal concept that pertains to whether a particular piece of proffered evidence can even be considered by the factfinder, the latter pertains to the credibility and weight of such evidence as assigned by the trier of fact. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (distinguishing between competence and weight and credibility and explaining that the "former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If evidence is not competent, it cannot be considered as evidence by the factfinder. Id. However, the mere fact that evidence is deemed competent does not mean that it must be found persuasive of a particular fact. See Id. If evidence is found to be competent, it is for the Board to determine what, if any, probative value to assign to that evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence). Here, although the Veteran is certainly competent to comment on the events in service, the Board finds the Veteran's contentions regarding in-service incurrence and continuity of pain and symptoms since service not credible given the lack of continuity of complaints or medical treatment during service or for decades after service. Indeed, the Board observes the Veteran does not allege he ever made any attempt to report symptoms of foot pain in service except for the need to change the boot size he was assigned. In fact, he claims he "suffered in silence" and the first documented reports of symptoms and treatment occur almost thirty-five years after separation. See June 2016 Correspondence. In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence, and the potential bias of the declarant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345 (1999). The lack of contemporaneous evidence is also relevant; however, it may not generally serve as the sole basis for discrediting lay statements or testimony. Buchanan, 451 F.3d at 1337. Here, the Board emphasizes the Veteran's credibility is not being discounted solely because of a lack of contemporaneous evidence. Rather, the Veteran himself denies he ever sought treatment both at the time of the acute injury, or at any time thereafter where he claims the pain and symptoms were continuous. The idea that the Veteran would not complain of an acute or an ongoing issue for decades is incredible. The Veteran has not identified any instance of reporting this pain or seeking treatment until documented reports in 2013. Cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (a lack of notation where such notation would normally be expected may be relied on as evidence against the existence of the fact or facts that ordinarily would have been noted). Therefore, the Board finds the January 2020 VA medical opinion to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. Veteran's inconsistent statements concerning his pain coupled with a thirty-five-year gap between reports of symptoms lead the Board to conclude there is a preponderance of evidence against finding continuity of symptomology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). Further, the Veteran is not considered competent to medically attribute his current bilateral foot disabilities to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the Veteran's in-service activities and any current feet disabilities. To determine whether such a relationship exists, the Board turns to the competent medical evidence of record. The United States Court of Appeals for Veterans Claims has stated that the probative value of a medical opinion is based on the expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). With respect to a nexus between the current bilateral foot disabilities and in-service occurrence, the Board assigns more probative weight to the January 2020 VA examiner's opinion which denied service connection after thorough review of the Veteran's file and due consideration to his reports of onset. As such, the Board finds no causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). The Board has also considered whether the Veteran is entitled to service connection for any foot disabilities as a "chronic disease." See 38 C.F.R. § 3.303 (b). The Board notes that the first documented treatment or diagnosis for any foot condition, to include bunions and hammertoes, occurred in 2013 at the earliest, thirty-five years after his separation from active service. Thus, the record does not show that the Veteran's bilateral foot disabilities manifested to a compensable degree within one year of separation. While the Veteran has later reported onset of bunions and hammertoes in and since service, the prolonged period from separation from service until 2013, without complaints and/or treatments for his alleged disability is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In the absence of credible evidence of bilateral foot disabilities within one year after separation or credible evidence continuity of symptomatology, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.