Citation Nr: 21042500 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-28 709 DATE: July 13, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right foot disability has been reopened. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. FINDINGS OF FACT 1. An April 2007 rating decision which denied entitlement to service connection for a right foot condition is final; evidence has been received since that decision which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right foot disorder. 2. The preponderance of the evidence is against finding that the Veteran has a right foot disability that was incurred in service or within one year of separation from service, or that is related to his active duty service. 3. There is no competent and probative evidence indicating that the Veteran has a left foot disability that was incurred in service or within one year of separation from service, or that is related to his active duty service. CONCLUSIONS OF LAW 1. The April 2007 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a right foot disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to June 1965. This case comes to the Board of Veterans' Appeals (Board) from an October 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office. The Veteran requested a hearing before a Veterans Law Judge on his May 2018 Form 9, but in June 2021, the Veteran, through his representative, withdrew his request for a hearing. New and Material Evidence The Veteran initially submitted a claim for service connection for a right foot disability in October 2006. He wrote that his right foot had been run over by a truck in service in August or September 1962, and that he has had foot pain ever since. The claim was denied in an April 2007 rating decision that found no evidence of treatment or diagnosis for a foot condition in service, and no evidence of a foot disorder in the VA treatment records. The Veteran did not submit a Notice of Disagreement with this decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. At the time of the April 2007 rating decision, the evidence did not demonstrate that the Veteran had a current diagnosis for his right foot. Since that decision, the Veteran attended a VA examination that diagnosed him with right foot metatarsalgia and plantar fasciitis. This provides evidence of a previously unestablished element needed to substantiate the claimevidence of a current disability. Therefore, evidence has been obtained since the last prior denial which relates to an unestablished element necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The additional evidence is therefore new and material. The claim of entitlement to service connection for a right foot disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection for Right and Left Foot Disabilities The Veteran contends that he has right and left foot disorder which began during his active duty service. The Veteran wrote in October 2006 and November 2006 that a truck ran over his right foot in 1962, and that he was treated at the hospital at Fort Jackson. In October 2017, the Veteran wrote that a truck had run over both of his feet, and that he had gone to sick call, but his supervisor told him that if he told medics he was injured by getting run over, they would give him a dishonorable discharge. He wrote that he has had trouble with his feet ever since. In June 2021, the Veteran wrote that during basic training, he was assigned to report to the motor pool to drive a supply truck, and while performing a checklist, someone accidentally started the vehicle and ran over both of his feet and toes. He wrote that the next morning, his feet were so swollen and sore that he could hardly stand, and that the staff sergeant told him to report to the medical hospital, but to not say what happened at the motor pool, because he could get a dishonorable discharge because he didn't report the accident. He was told to tell the doctor that his shower shoes rubbed blisters on his feet and got infected. He wrote that he only complained about the right foot, because it was worse than the left foot. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis (degenerative joint disease) will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's service treatment records do not show any record of a truck injury, traumatic injury to the foot, or disorder of the foot joints, bones, or muscles. In July 1962 he was treated for foot blisters. He was noted to have blisters caused by irritation from his shower shoes. The area was macerated and infected. Several days later, he was diagnosed with cellulitis without lymphangitis between the first and second toes of his right foot. In October 1962, the skin under his right nail was treated. The Veteran's March 1965 separation examination found that the feet were normal, and made no findings of a foot disorder. On his March 1965 Report of Medical History, the Veteran wrote that he was in good health, and he marked "no" for foot trouble. The Veteran's VA treatment records show that in recent years, he has been treated for pain in his feet and heels. In June 2016, he was diagnosed with heel spur syndrome, plantar fasciitis, and metatarsalgia. The Veteran has since received ongoing treatment from a podiatrist, and he has been prescribed show inserts. The Veteran attended a VA examination with a physician assistant in May 2018. The Veteran reported that his feet had been bothering him since 2004, and that his foot was run over by a truck in 1962, but he had been told not to report the incident. He also reported a history of problems with his great toenail, and said that even with his shoe inserts, his feet continued to hurt. The examiner performed an in-person examination of the Veteran and indicated that he had reviewed the electronic claims file and the VA treatment records. He found that the Veteran had pain on use of his feet and with manipulation. There was no indication of swelling on use or characteristic callouses. The examiner noted that the Veteran had bilateral pain on movement, pain on weight-bearing, and interference with standing. He wrote that the Veteran had diagnoses of bilateral metatarsalgia and plantar fasciitis from 2016, and a diagnosis of right foot cellulitis due to shower shoes from 1962. Imaging had also found arthritis in both feet. The VA examiner was asked to opine on whether the Veteran had a right foot condition that was at least as likely as not incurred in or caused by the right foot infections the Veteran had during service. The examiner wrote that the Veteran had two episodes of cellulitis in service, and that there were no further complaints or documentation of right foot problems of this nature after service. He wrote that the Veteran's current foot problems were not related to cellulitis, but were due to toe and arch pain, and that the Veteran worked as a teacher and stood on concrete for a long time. He wrote that cellulitis does not cause plantar fasciitis or metatarsalgia after the injection has been treated. He wrote that the Veteran stated that his feet were run over by a jeep, but there was no documentation regarding this. He also noted that the Veteran's separation physical showed no foot problems, and there was no record of his feet being run over while in service. He found that it was less likely than not the condition was incurred in or caused by an in-service injury, event, or illness. After review all of the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran's claims for service connection for either right or left foot disorders. The Board has considered the Veteran's assertions that he had a bilateral foot crush injury from a truck in service, but finds these assertions are not credible. The Board, as the fact-finder, is required to evaluate the credibility of evidence. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's statements regarding his injury from a truck are inconsistent and implausible when compared to the other evidence of record. The Veteran has been inconsistent regarding his reports of the accident, first stating it ran over only his right foot, and later that it ran over both his feet. The Veteran has also written that he was told not to report this accident, and that he lied to his medical providers by saying that it was caused by rubbing from his shower shoes. He has indicated that the treatment he received for blisters and cellulitis was, in fact, treatment for a crush injury caused by a truck. The Board does not find this assertion to be plausible, as cellulitis, which is an infection of the skin, and blisters, are entirely different disorders from something like broken bones or damage to the internal parts of the foot, as would be caused by a crush injury. It is not believable that the examiners who treated the Veteran's cellulitis would find this diagnosis but entirely miss a separate traumatic injury that had just been incurred. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the lay assertions) (citing Caluza, 7 Vet. App. at 506); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value, and statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cf. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). The Board also finds that the Veteran's assertions that he incurred a chronic right foot disorder in service that continued to cause him problems from the time of basic training until the present not to be credible. The Veteran's service treatment records do not show any complaints of foot pain or functional foot impairment other than blisters and cellulitis at any time. The Board considered the decision in Buchanan, 451 F.3d 1331, wherein the Federal Circuit determined that the Board had erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. This case is distinguishable as the Board is not relying merely upon a general absence of complaints during service, but instead is also relying on normal March 1965 in-service examination findings, and the Veteran's specific in-service denials of relevant symptoms of foot trouble in March 1965. The Board finds the May 2018 VA medical opinion to be highly probative evidence which weighs against the claim. It was written by a competent physician assistant who had reviewed all of the medical records, including consideration of the Veteran's lay assertions. He provided extensive, adequate rationale regarding whether the Veteran's right foot disorder was related to service, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore finds that the most probative medical evidence of record indicates that the Veteran's right foot disability is not related to his service. The Board acknowledges that the VA examiner did not provide a medical opinion regarding the left foot. VA is obliged to provide a VA medical examination and obtain a relevant medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, while the Veteran has been shown to have a current left foot disability, there is no credible evidence indicating that any event, injury, or disease occurred in service which could be related to his current left foot metatarsalgia or plantar fasciitis. In the absence of any such evidence, a VA medical opinion addressing the etiology of his left foot disorders is not warranted. The Veteran has argued that his May 2018 VA examination was not adequate because the examiner did not come all the way into the examination room and spoke to him for only 3 minutes. The Board does not, however, find any evidence indicating that the VA examination was not properly conducted. A VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity). See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009). The Veteran did not actually assert that the examiner was not competent or qualified to perform the examination, but only that the examination was not adequately completed. See Francway v. Wilkie, 940 F.3d 1304 (2019) (VA examiners are generally presumed to be competent, but a Veteran may challenge the competency of an examiner.). The Board finds no reason to believe that the May 2018 VA examination was not accurate, that the examiner lied about performing an in-person examination of the Veteran, or that he falsified his findings. The examination report is adequately complete, and the Board finds that it is reasonable to rely on its findings. While the Veteran may believe that his right and left foot metatarsalgia, arthritis, and/or plantar fasciitis were caused by injuries incurred in service, the Board does not find that his statements are sufficient to establish a nexus to service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to state that he had feelings of foot pain or discomfort in service, but this does not establish that they were caused by a traumatic injury or that all instances of foot pain were due to the same chronic etiology. There is also no evidence that the Veteran was diagnosed with arthritis/degenerative joint disease in service or within one year of separation from service. The Board finds that the most probative evidence therefore does not demonstrate that the Veteran had a chronic right or left foot disorder which began in service or had a continuity of symptomatology since that time. The Veteran's assertions of incurring a crush injury from a truck while in service are not credible, and the most probative evidence in the record is the May 2018 VA medical opinion, which did not find a nexus to service for the Veteran's current right foot disability. There is also no probative medical evidence relating any left foot disorder to service. In sum, the most probative evidence preponderates against finding that the Veteran has either a right or left foot disability that was incurred in service or within one year of service, or that his disabilities are related to any event or injury in service. Entitlement to service connection for a right or left foot disorder is denied. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the claims. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.