Citation Nr: 21042296 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-33 212 DATE: July 12, 2021 ORDER Entitlement to service connection for a right foot condition is denied. FINDING OF FACT The competent and probative evidence of record does not show that the Veteran's right foot condition is related to service. CONCLUSION OF LAW The criteria for service connection for a right foot condition have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard from March 1984 to May 1984, and on active duty from February 1985 to June 1992. This matter comes before the Board of Veterans' Appeals' (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing is of record. The Board remanded this matter in December 2019, September 2020, and February 2021. The Board finds there has been substantial compliance with its February 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Entitlement to service connection for a right foot condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Service connection may 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) (2020). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C. § 101 (21) (2012). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101 (10) (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21) and (24); 38 C.F.R. § 3.6 (a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6 (c)(1) (2020). With respect members of the National Guard, ACDUTRA means full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101 (22)(c). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 C.F.R. § 3.6 (d)(4). Any individual (1) who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA for training; and (2) who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. 38 C.F.R. § 3.6 (e) (2020). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates. When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his right foot condition is due to service. Service treatment records are silent for complaints, treatment, or diagnosis of a right foot condition. The Board acknowledges that the service treatment records do at one point mention a right foot complaint in January 1989; however, as will be shown below, this has been determined to be a clerical error as the Veteran was instead treated for his left foot fracture (a disorder for which service connection has already been granted). In a March 2008 VA examination, the Veteran was seen for evaluations of his right wrist and bilateral feet for history of fracture at these areas. The Veteran was concerned about numbness in the right 4th and 5th toes, which he said were related to a right toe Jones fracture that he sustained during service. The examiner noted that there was a significant discrepancy with requests to records and requests as the request was for a left 5th metatarsal bone fracture review, whereas the Veteran was adamant that he sustained a right foot injury. The examiner said that while review of the claims file showed that the majority of the progress notes were related to a left foot fracture in 1988, there was a January 27, 1989, note that specifically stated that he had right 5th metatarsal fracture. The claims folder discussed a Jones fracture of the base of the left 5th metatarsal, which was casted for 3 weeks and the followup noted on January 3, 1988. The examiner did not provide an opinion on etiology of the right foot condition, but instead just noted the discrepancy in the Veteran's statements versus the records. In a March 2008 VA treatment record, the Veteran said that he initially developed some joint pains after he fractured his right wrist, right ankle, and left foot in 1988. The symptoms were mild initially but had progressed. The Veteran said he was diagnosed with arthritis around 2003. The treating physician noted that the Veteran had a history of right foot fracture in 1988 or 1989. In an October 2013 VA examination, the examiner noted diagnoses of metatarsalgia and mild degenerative joint disease of the left foot status post 5th metatarsal fracture with mild swelling and achilles heel spurring in 1988. The Veteran stated that he fractured his left 5th metatarsal bone in 2008, while on active duty training. No opinion on etiology was provided for the right foot condition. A February 2014 VA treatment record noted a diagnosis of bilateral pes planus. An August 2017 VA treatment record noted a diagnosis of plantar fasciitis on the left foot. In an August 2018 VA examination, the examiner noted diagnoses of left metatarsalgia and left foot pain status post 5th metatarsal fracture in 2013. No opinion on etiology was provided for the right foot condition. At the September 2019 Board hearing, the Veteran testified that his military occupational specialty (MOS) as airborne and air serviceman included duties that caused repeated traumas to his right foot. He said that due to his jump status, he incurred injuries in service. The Veteran stated that there was active discouragement to report injuries. VA opinions were provided for the Veteran's right foot condition in February 2020 and November 2020. However, as the Board determined these opinions to be inadequate, they will not be discussed in this decision. In a May 2021 VA opinion, the examiner opined that the Veteran's right foot condition was less likely than not related to service. The examiner noted that the Veteran claimed his MOS in service caused trauma to his right foot as he was on jump status, as well as his statements of injury in service and pain noted in treatment records as early as March 2008. The examiner said that the Veteran was seen for left foot pain on December 2, 1988, with the previous fracture noted September 1988. A Jones fracture was documented. Records on January 27, 1989, reflect right foot pain status post right 5th metatarsal base fracture September 1988. The examiner found that these records were contradictory; the notes on September 27, 1988, and multiple related x-rays reflected fracture of the left foot. Therefore, the examiner determined that the records on January 27, 1989, reflected clerical errors. The examiner said that there was no documented right foot pain in service, and it would not change this rationale because the separation exam dated March 31, 1992, was negative for right foot conditions. Additionally, the examiner said that the records regarding right foot pain in 2008 were not located and the earliest documented records were 2013/2014. However, the examiner said that for the purposes of this rationale, 2008 would be conceded as it did not alter the rationale. The examiner stated that it was less likely than not that the Veteran's right foot condition had its nexus in service or was due to events in service, including the Veteran's MOS and jump status. Such injuries would have been evident at that time or proximate to it and were not evident at separation nor for greater than 15 years. The Veteran's diagnoses showed bilateral pes planus and plantar fasciitis. They were bilateral and likely represented acquired pes planus with plantar fasciitis. There was no evidence of pes planus while in service or until well after service, even if conceding 2008. The examiner determined that the plantar fasciitis was likely secondary to the acquired pes planus, the most likely cause of acquired pes planus, other than acute injury was posterior tibialis dysfunction. Family history and age were the major risk factors. It was thought to be due to chronic wear and tear and weight-bearing over a lifetime. Additional post service treatment records are silent for any nexus between the Veteran's right foot condition and service. Overall, the Board finds that the probative and competent evidence of record does not show that the Veteran's right foot condition is related to service. After determining that a clear clerical error was made in the service treatment records as noted by the 2008 and 2021 VA examiners, there are no complaints, treatment, or diagnosis of a right foot condition during service. There are no complaints about right foot pain until 2008, over 15 years following separation from service, showing a lack of continuity of symptomatology. Additionally, the Veteran himself has made conflicting statements, saying in 2008 he was concerned about numbness in the right 4th and 5th toes, which he said were related to a right toe Jones fracture that he sustained during service, and then later at the 2019 Board hearing that his right foot condition was related to his MOS in service. As a whole, the record does not show the Veteran's right foot condition to be related to service. The Board finds the May 2021 VA examiner's negative opinion highly probative as it was based on a review of the record and consideration of the Veteran's lay statements. There are no probative medical opinions to the contrary. In forming this opinion, the Board has also considered the Veteran's lay statements in support of his claim. However, as stated above, the Board finds the medical evidence more probative in this instance. Here, the medical evidence of record weighs against the Veteran's claim and does not support his statement that a right foot condition was due to service. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for right foot condition is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.