Citation Nr: 21031069 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-39 369 DATE: May 20, 2021 ORDER Service connection for a bilateral foot disability is granted. Service connection for a bilateral leg condition is granted. FINDINGS OF FACT 1. The Veteran's foot disability was incurred in service, with continuing symptoms that have existed since her separation from service. 2. By resolving all reasonable doubt in the Veteran's favor, her bilateral leg disability was incurred in service, with continuing symptoms that have existed since her separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability have been met. 38 §§ U.S.C. 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a bilateral leg condition have been met. 38 §§ U.S.C. 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In May 2019, the Board remanded this matter for to the RO for further evidentiary development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Bilateral Foot & Leg Disabilities The Veteran asserts that her bilateral foot and leg disabilities are causally related to her active military service. At a February 2019 videoconference hearing, the Veteran testified that during her time in service, she went to sick back for swelling of the legs and pain in the feet. She explained that she explained symptoms with her foot and leg continued throughout her military service, she was placed on light duty, and that her leg and feet conditions were the result of physical training and working. Further, she testified that upon discharge, she continued to experience these pains, and that she sought treatment with her private physician within a few years after her separation from service. She additionally testified that the pain she currently has with her leg and feet are similar to the kind of pain she had while she was in service, although they have worsened. While the Veteran's June 1979 examination report for enlistment into service does not reflect any foot or leg conditions, service treatment records (STRs) confirm that the Veteran developed pain and swelling in the feet, and approximately a month after, she also developed swelling in the left knee. See February 1980 Podiatry Note; see also March 1980 Treatment Note. A November 1980 treatment note also reflects a finding of right ankle arthralgia. Her enlistment examination did not note any feet or leg conditions. Post-service treatment records reflect current diagnoses of leg and foot disabilities. Specifically, for example, treatment records reflect chronic pain; swelling; and numbing and tingling of the bilateral leg and foot. See e.g. August 2003 Private Treatment Rheumatology Note from Dr. J.R.S.; see also April 2013 Private Treatment Note; see too October 2015 Private Treatment Note; see too, February 2019 Private Treatment Note. An April 2013 private treatment note clarifies that the Veteran's complaints of numbness and tingling in both feet, as well as intermittent arch pain and cramping in both legs and feet, have existed for several years. Post-service treatment records also reflect current diagnoses of bilateral pes planus, bilateral osteoarthritis of the first metatarsophalangeal joint (i.e. bilateral foot osteoarthritis), and right plantar spur. See e.g. March 2013 Private Treatment Note from Dr. A.B.S.; see also July 2014 X-Ray Report from Riverbend Medical Group; see too June 2016 Private Treatment Note; see, too February 2019 Private Treatment Note. In support of her claim, the Veteran submitted buddy statements from family members. Specifically, in a February 2012 buddy statement, her spouse, V.G., testified that he has been married to the Veteran since 1981, and that his wife has had feet problems, which require constant visits to the doctors to help her with pain management. In another February 2012 buddy statement, the Veteran's daughter, V.L.C., stated that the Veteran has suffered from problems with her feet for as long as she could remember. She explained that her mother, the Veteran, has flat feet; this often causes pain after walking or standing for extended periods of time; and that these problems pre-existed her back injury. Also, in support of her claim, the Veteran submitted a statement from her private physician, Dr. A.B.S. In this February 2012 correspondence, Dr. A.B.S. certified that the Veteran is under her medical supervision, and that the Veteran has been having pain in her feet since 1979. Additionally, Dr. A.B.S. clarified that she did not believe that the Veteran's feet conditions are related to her back issue. The Veteran was afforded VA examinations for the bilateral foot and leg conditions in December 2019. For the bilateral foot disability, a VA examiner opined that it was less likely than not (less than 50 percent probability), the Veteran's bilateral foot disability was incurred in or caused by the claimed in-service injury, event, or illness. See January 2021 VA Medical Opinion. As the rationale for this January 2021 VA opinion, the VA examiner reasoned that there is no evidence of a foot condition arising in service connection; a separation examination was not available; and that there is no evidence of care proximate to service. Further, the VA examiner stated that the first evidence of foot pain is in February 2013, at which pes planus was identified, and degenerative joint disease was ultimately identified via imaging, and that it is unlikely the Veteran could have gone a span of 30 years between service and seeking care, had the conditions arisen in service. However, the VA examiner's finding, that there is no evidence of a foot condition arising in service, is contrary to evidence of in-service foot conditions in the Veteran's STRs, as noted above. Also to the contrary, available treatment records show that the Veteran has been seeking treatment for bilateral foot pain since as far back as August 2003, and thus, the first evidence of foot pain is not in February 2013. The Veteran's treating private physician, Dr. A.B.S., even confirmed that the Veteran has been having foot pain since 1979. Additionally, this VA opinion does not account for the Veteran's lay statements about onset and continuity of bilateral foot symptoms. Thus, apparently, the VA examiner did not consider or account for all of the pertinent evidence, in rendering this opinion. In this regard, the Board finds that this opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (finding that "[if] the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). Similarly, in a December 2019 VA opinion, the VA examiner opined that the Veteran's bilateral leg disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner reasoned that there is no evidence identifying a bilateral lower leg condition occurring during service, and that a nexus has not been established. (Continued on the next page) However, the VA examiner did not consider all of the pertinent evidence, including, for example, the Veteran's lay statements, as well as in-service treatment record that reflects complaints and treatment for left knee swelling. Rather, the VA examiner solely based her opinion on the absence of evidence of an in-service bilateral leg condition. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the VA examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records (STRs) to provide a negative opinion). Therefore, the Board cannot afford this opinion any probative value in the adjudication of this service connection claim for a bilateral leg disability. After a review of all probative evidence, the Board finds that the Veteran's testimony about the onset and continuity of her feet and leg conditions, since her time in active service, are competent and credible, as they are supported and corroborated by STRs, post-service treatment records, buddy statements from her husband and daughter, and especially her private physician, Dr. A.B.S., who confirmed that the Veteran has been having pain in her feet since 1979. Thus, by resolving all reasonable doubt in the Veteran's favor, the service connection claims for a bilateral foot disability and a bilateral leg disability are granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.