Citation Nr: 22068340 Decision Date: 12/13/22 Archive Date: 12/13/22 DOCKET NO. 11-11 532 DATE: December 13, 2022 ORDER Entitlement to service connection for arthritis of the feet, to include bilateral hallux valgus, hammer toe deformities, and atherosclerotic disease in distal arteries, is denied. Entitlement to a to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. Arthritis of the feet, to include bilateral hallux valgus, hammer toe deformities, and atherosclerotic disease in distal arteries, was not manifested in service or within the one-year period following service, and it is not related to service. 2. The Veteran has no service-connected disabilities upon which a total disability rating based on individual unemployability (TDIU) may be based. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the feet, to include bilateral hallux valgus, hammer toe deformities, and atherosclerotic disease in distal arteries, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a to a total disability rating based on individual unemployability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Army from September 1957 to May 1958. This matter is on appeal before the Board of Veterans' Appeals (Board) from August 2010 and May 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Board denied the Veteran's claim for service connection for arthritis other than lumbar spine, cervical spine, bilateral shoulders, and bilateral hands; and TDIU. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). In July 2015, the Court found the Board did not provide an adequate statement of reasons or bases for its findings, vacated the decision and remanded the appeal for further development and adjudication. The Board remanded this appeal in March 2016, August 2018, August 2020, and March 2022 for further development. In the March 2022 remand, the Board recharacterized the issue on appeal to include not just arthritis of the feet, but also bilateral hallux valgus, hammer toe deformities, and atherosclerotic disease in the distal arteries. The requested development is now complete, and the case is back before the Board for further adjudication. 1. Entitlement to service connection for arthritis of the feet, to include bilateral hallux valgus, hammer toe deformities, and atherosclerotic disease in distal arteries. The Veteran asserts that the arthritis in his feet should be service-connected. As noted, the Board expanded the scope of the claim in the March 2022 remand. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, if the Veteran has established a current disability and it is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As the Veteran has been diagnosed with degenerative arthritis of both feet, an additional question before the Board is whether the current arthritis began during service, manifest to a compensable degree within one year of discharge from service, or had manifestations in service with a continuity of symptomatology after service. The Board concludes that, while the Veteran has current diagnoses of degenerative arthritis of the feet, hammer toes, hallux valgus, and atherosclerotic disease in the distal arteries, the evidence of record persuasively weighs against finding that these disabilities began during service or are otherwise related to an in-service injury, event, or disease. The evidence is also persuasively against finding that arthritis manifested to a compensable degree within one year of separation from service. In the report of medical history at separation from service, the Veteran endorsed foot trouble. He did not elaborate on what kind of trouble, nor did the physician. The separation examination showed a normal clinical evaluation of the feet. In May 1958, the Veteran reported that there had been no change in his physical condition since then. Service treatment records otherwise do not reference the feet, although the Veteran did complain of knee problems. The May 2021 VA examiner opined that the Veteran's arthritis of the feet is not related to an in-service injury, event, or disease. The rationale was there is "no cause-effect temporal relationship" between the claimed arthritis of the feet, discovered around 10 years prior (as reported by the Veteran), and service in the 1950's. The examiner also reasoned that the Veteran did not recall an event that he could relate to the foot arthritis. The examiner concluded that there is "no cause-effect specificity relationship" between the arthritis of feet, and any direct or indirect cause related to service, or after it, or aggravated by it. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting rationale that is consistent with the evidence of record. The examiner noted the Veteran's lay statement at the examination that, around 4 or 5 years ago in a routine examination in VA for his various conditions, he was told he had arthritis for 10 years. This report is not materially contradicted by other evidence of record. Accordingly, the VA examination and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Pursuant to the March 2022 Board remand requesting an opinion on the additional disabilities that the Board included in the scope of the claim, the March 2022 VA examiner opined that the Veteran's bilateral hammer toes, bilateral hallux valgus, bilateral plantar fasciitis, and bilateral toe degenerative osteoarthritis are not related to an in-service injury, event, or disease. The rationale was essentially the same as the clarifying opinion provided in June 2022. The June 2022 examiner opined that bilateral hammer toes, bilateral hallux valgus, bilateral atherosclerosis, bilateral plantar fasciitis, and bilateral toe degenerative osteoarthritis are not related to an in-service injury, event, or disease. The rationale was the service treatment record noting foot trouble does not identify what type of foot trouble. The examiner also reasoned that the Veteran reported his foot pain started in 2010 and that the diagnosis was made 64 years after separation from service. The examiner notes that the service treatment records are silent for the specific conditions identified. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting reasoning. The examiner's opinion also does not rely solely on silence in service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran submitted private medical opinions. In a May 2010 private physician letter, the physician noted the Veteran with a history of "back problems, cervical problems, neuropathy, prostate problem, arthritis." The Veteran reported symptoms of arthritis where he would experience mild stiffness upon waking up and referred weakness that causes him to nearly fall when walking. The physician stated that the Veteran "could have" injured his neck during training in service by carrying weight on his back and shoulders, but there was no report or discussion regarding any disability of the feet indicated in this letter. Therefore it does not provide any probative evidence in support of this claim. In a second May 2010 private physician letter, the Veteran reported that he was "soliciting disability due to cervical surgery" and was experiencing severe pain that affected the movement of his hands and made it difficult to hold things. The Veteran stated that he suffered from arthritis but did not specify where the arthritis was located. This opinion is also not probative because it does not address the feet. Neither physician in the May 2010 letters found whether there was arthritis in the Veteran's feet. While the first private statement contains an opinion, the opinion is speculative, using the language "could have." This language simply states a mere possibility that an injury occurred in service. Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that service "could have" precipitated disability found too speculative to be of probative value.). Moreover, the possible injury relates to a part of the anatomy far removed from the feet the neck. The Board acknowledges the Veteran's statements describing the symptoms of his arthritis of the bilateral feet. Certainly, the Veteran is competent to describe experiencing symptoms. To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nevertheless, the Veteran in this case does not have the training or expertise to render a competent opinion in this case, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Its complexity is due, in part, to the need to have knowledge of the medical, internal causes of diseases such as arthritis and their progression. The Veteran has not been shown to have such knowledge. Accordingly, the Veteran's opinion is not given probative weight. As to onset of the disease and continuity of symptomatology, the Veteran did not describe onset during service nor within a year of separation. Instead, the Veteran described onset in approximately 2010, as discussed by the VA examiners. Treatment records show significant evaluation of the Veteran's physical limitations for work purposes in 2006. They do not note foot trouble. In November 2009, the Veteran was treated for trauma to the right foot when a table fell on it, and this was decades after service. In August 2016, the Veteran complained of pains in his feet. Thus, the evidence is persuasively against an onset of the diseases until decades after service. The single note of "foot trouble" in the service treatment records is too vague to determine that foot trouble began in service or that the current disability is related to service, as persuasively discussed by the VA examiners. The Board further finds that there has been substantial compliance with the March 2016, August 2018, August 2020, and March 2022 Board remand directives. The March 2016 Board remand directed, as it pertains to the arthritis claim, the AOJ to send a letter to the Veteran to ask him to identify any injury, any treatment, and disease onset, both in service and after service and to identify treatment providers. The Board then directed the AOJ to schedule the Veteran for a VA examination and obtain a medical opinion regarding the Veteran's arthritis claim. On remand, a December 2017 letter was sent to the Veteran requesting the information the Board set forth, and examinations were held for the lumbar spine, cervical spine, and bilateral shoulders. The August 2018 Board remand directed VA to schedule a VA examination for arthritis in other than the spine and shoulders. On remand, an examination for arthritis of the hands was provided. The August 2020 Board remand directed VA to obtain an examination for arthritis of the feet. On remand, the May 2021 VA examination discussed above was conducted. The March 2022 Board remand directed the AOJ to obtain an addendum opinion as to all the foot disabilities identified in the May 2021 VA examination, to include bilateral hallux valgus, hammer toes deformities, and atherosclerotic disease. The AOJ did so in the March 2022 and June 2022 opinions discussed above. Accordingly, there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the above, the Board finds that the competent evidence on record is against a finding of service connection for the Veteran's current bilateral foot disabilities on either a direct or a presumptive basis, where a chronic disease is present. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to a to a total disability rating based on individual unemployability. The Veteran seeks a total disability rating based upon individual unemployability. Unfortunately, the Veteran has not met the threshold criteria for such a rating. The Veteran must first have a service-connected disability eligible for rating. Specifically, a total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This provision shows a TDIU is dependent on the Veteran having a service-connected disability. Because the Veteran does not have any service-connected disabilities, a TDIU is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.