Citation Nr: 21032425 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-33 711 DATE: May 27, 2021 ORDER Service connection for degenerative joint disease of the bilateral feet is denied. FINDING OF FACT The Veteran's degenerative joint disease of the bilateral feet is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by service-connected bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the bilateral feet have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from August 1980 to December 1980 and on active duty from November 1990 to May 1991 and June 2004 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2019, the Board, in pertinent part, denied service connection for a bilateral foot disorder and the Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board's June 2019 decision. In October 2020 and January 2021, the Board remanded the case for additional development. Rating decisions issued in March 2021 awarded service connection for bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot. As such constitutes a full grant as to those diagnosed disabilities, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); AB v. Brown, 6 Vet. App. 35, 38 (1993). The remaining issue now returns for further appellate review. Entitlement to service connection for degenerative joint disease of the bilateral feet, to include as secondary to service-connected bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot. The Veteran contends that his currently diagnosed degenerative joint disease of the bilateral feet as a result of his military service as such problems began at Camp Lejeune during infantry training in 2004, which included a lot of running. He further indicated that he continued to experienced flare-ups in his feet during the remainder of his time in service. In this regard, the Board notes that the Veteran does not contend, and the evidence does not show, that his degenerative joint disease of the bilateral feet is related to his period of ACDUTRA from August 1980 to December 1980 or active duty from November 1990 to May 1991. In the alternative, the record has raised the issue of whether such disorder is caused or aggravated by service-connected bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot. 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 a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). With respect to a current disability, VA examination reports and private treatment records reflect a diagnosis of degenerative joint disease of the bilateral feet. The Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable degenerative joint disease of the bilateral feet. However, in November 2004, he reported that he experienced pain in the right foot after being on his feet or after sitting for long periods of time. X-ray examination revealed a possible history of cortical fracture of mid-shaft of the proximal phalange of the right little toe, and an assessment of right foot Morton's neuroma was noted. A December 2004 STR notes that the Veteran had a six-week history of right foot pain and an assessment of extensor digitorum longus tendonitis was rendered. A February 2005 STR indicates a report of right foot Morton's neuroma, otherwise asymptomatic. Additionally, in April 2019, C.H. stated that he had worked with the Veteran since 1981 and noted that, following the Veteran's return from deployment in Africa in 2004, he began to suffer from feet problems that have since continued to present time. C.H. further indicated that, in some cases, the Veteran had not been able to perform his duties due to his foot problems, such as standing for long periods of times and climbing ladders. Further, in a September 2020 buddy statement, D.P. reported that he served with the Veteran from 2004 to 2006 in Africa, during which time the Veteran experienced medical issues with his feet that caused difficulty with walking, running, and performing required duties and tasks. D.P. further reported that, due to his position, he was made aware that the Veteran visited the base clinic several times to receive shots in his feet in order to be able to gain enough function to resume regular duties. Here, D.P. noted that the Veteran continued to train and go on patrol, which included running 5-10 miles several times a week on terrain that was rough and rocky. However, following examination in August 2013, a VA examiner opined the Veteran's degenerative joint disease of the bilateral feet is less likely as not caused by or a result of an in-service event. As rationale for the opinion, he reported that the Veteran's civilian job involved manual labor/construction in various capacities, and he had been a civilian and working manual labor predominantly throughout his Reserve career. Consequently, the examiner concluded that he could not attribute the Veteran's current bilateral foot disorder to any period of service as there was no mention of bilateral degenerative joint disease of the feet as a result of his service. However, as noted in the JMPR, it is not clear from the examination report whether the examiner limited the opinion to consideration of the Veteran's 1980 period of service as he made no references to the Veteran's period of service from 2004 to 2005 or his deployment to Africa during such time period. Thus, the parties found the Board erred in its reliance on the August 2013 VA examiner's opinion, and the Board affords it no probative weight. Likewise, the Board affords no probative weight to an April 2019 opinion from C.W., a physician's assistant in orthopedic surgery. Specifically, in such opinion, he indicated that, following a review of the Veteran's STRs and post-service treatment records, and an examination, the Veteran had a diagnosis of arthritis that was most likely caused by or a result of his term of service. However, in support of such opinion, he merely reiterated that the Veteran's bilateral foot pain and symptoms were a result of his years of service, and did not offer a rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, such opinion is afforded no probative weight. The Board also affords no probative weight to a September 2020 opinion from Dr. T.B., a physician in general medicine. In this regard, he noted a review of the Veteran's STRs, statement of the case, and post-service treatment records, indicated a diagnosis of osteoarthritis of the left foot and ankle, and opined that such foot disorder was most likely caused by or a result of overuse and trauma. In support of such opinion, he reported that the chronic pain in the Veteran's left foot may have been caused by overuse and/or trauma during his time in service. However, as Dr. T.B. couched his rationale in speculative terms, indicating only a possible relationship between such disorder and his military service, such opinion is afforded no probative weight. 38 C.F.R. § 3.102; Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). The Board also affords no probative weight to a November 2020 VA examiner's opinion. Specifically, following examination of the Veteran, he opined that the Veteran's degenerative arthritis is less likely than not caused by or due to his service. In this regard, while he provided a thorough review of the objective evidence of record, to include the a lack of degenerative changes of the right foot on X-ray examination in 2004 and the findings on imaging in 2013, and found that the early degenerative changes on the bilateral first MTP joints were age-related as such was the first joint affected by degenerative changes on the foot, his statement that the "lay statements are appreciated" was dismissive and an inadequate discussion of the lay statements of record in the instant case. However, in February 2021, a VA clinician provided an addendum opinion regarding the Veteran's degenerative joint disease of the bilateral feet. Specifically, she found it is less likely as not that the condition manifested to a compensable degree within one year of discharge from active duty. In support thereof, the VA clinician cited to a September 2005 record documenting the Veteran's excellent health and the initial diagnosis of only minimal degenerative joint disease by X-ray examination in 2013. In March 2021, a VA physician provided an additional addendum opinion, finding the Veteran's degenerative joint disease of the bilateral feet less likely than not had its onset in, or is otherwise related to, his period of service from June 2004 to April 2005, to include his documented in-service complaints referable to the right foot in November 2004, December 2004, and February 2005. In offering such opinion, he noted a review of the claims file, to include the STRs, the lay statements from the Veteran's fellow service members, and the favorable private opinions, but found that the latter included no supporting evidence or rationale. Furthermore, the VA physician explained that arthritis is a diagnosis of a radiologic finding and, in this regard, a search of the STRs and post-service treatment records did not reveal a radiologic study showing such diagnosis in service, within a year of service, or until many years after service discharge. In a separate addendum, the VA physician also opined the Veteran's degenerative joint disease of the feet was less likely than not caused by, a result of, or aggravated beyond its natural progression by his bilateral pes cavus with atrophied fat pads, hammertoes, and/or right foot neuroma as arthritis is a separate and unrelated condition from such disabilities. The Board affords great probative weight to the February 2021 and March 2021 VA opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, supra; Stefl, supra. The Board has also considered the lay assertions addressing the etiology of the Veteran's degenerative joint disease of the bilateral feet; however, as lay persons, neither the Veteran nor his spouse possess the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of degenerative joint disease involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system and the impact physical training has on the feet. Therefore, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran reportedly experienced during and after service were in any way related to his current degenerative joint disease of the bilateral feet is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the lay opinions as to the onset and etiology of the Veteran's degenerative joint disease of the bilateral feet are not competent evidence and, consequently, are afforded little probative weight. The Board has also considered whether presumptive service connection for arthritis of the bilateral feet is warranted. In this regard, while the Veteran has reported that his feet have bothered him since service, he is not competent to relate such symptomatology to a diagnosis of arthritis, and he is service-connected for multiple other bilateral foot disorders, to include bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot, that may account for such symptoms. Moreover, as noted previously, the highly probative VA opinions provided in February 2021 and March 2021 found that such disease did not manifest within one year of the Veteran's separation from service, which is consistent with the medical evidence of record demonstrating an initial diagnosis of only minimal degenerative changes in 2013, approximately eight years after the Veteran's separation from service. Therefore, presumptive service connection for arthritis, to include based on a continuity of symptomatology, is not warranted. In conclusion, the Board finds that the Veteran's degenerative joint disease of the bilateral feet is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by service-connected bilateral pes cavus with atrophied fat pads, hammertoes, and neuroma of the right foot. Consequently, service connection for such is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for degenerative joint disease of the bilateral feet, such doctrine is inapplicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.