Citation Nr: 22011779 Decision Date: 03/02/22 Archive Date: 03/01/22 DOCKET NO. 15-18 338 DATE: March 2, 2022 ORDER Service connection for a left foot disability, to include degenerative joint disease and radiculopathy, is granted. Service connection for a right foot disability, to include degenerative joint disease and radiculopathy, is granted. FINDING OF FACT Resolving any reasonable doubt in favor of the Veteran, his bilateral foot arthritis and radiculopathy is etiologically related to his active duty service, to include his service connected lumbar spine disability. CONCLUSION OF LAW The criteria for bilateral foot disabilities, to include arthritis and radiculopathy, are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1995. He is the recipient of the Combat Action Ribbon. A Travel Board hearing was held in May 2019. The Veterans Law Judge who conducted that hearing retired. The Board notified the Veteran of this development on March 9, 2021 and provided him an opportunity to request another optional Board hearing within 30 days or submit a written statement in leu of a hearing. In April 2021, the Veteran indicated he did not want another hearing. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Bilateral Feet In this matter, a September 2021 VA examination diagnosed the Veteran with degenerative joint disease and radiculopathy of his bilateral feet. The examiner noted that the Veteran was service connected for a fracture of his L4 vertebrae. The examiner opined that the Veteran's severe foot pain was primarily neurological and caused by his radiculopathy, which he did not find was related to the Veteran's diabetes mellitus, type II, for which the Veteran is not service connected. Specifically, the examiner found that the Veteran's severe bilateral foot pain was related to and cause by his L4 vertebrae fracture. The examiner noted that the Veteran's foot pain began after his L4 fracture and that the Veteran has complained of foot pain in service and immediately after service. The record shows that the Veteran had a VA examination in 1995 wherein he complained of bilateral foot pain. Diagnostic tests were not performed at that time. A September 2010 VA examination where the Veteran continued to complain of foot pain did conduct diagnostic tests and diagnosed degenerative joint disease, bilaterally. Based on the foregoing evidence and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's bilateral foot arthritis and radiculopathy is warranted. Clearly, the September 2021 VA examiner related the Veteran's radiculopathy pain to his service connected L4 fracture. Though addendum opinions attempted to distinguish the Veteran's symptoms and determine what portion of his symptoms were related to what condition, the 2021 examiner continued to state that the Veteran's neurological symptoms i.e., his radiculopathy was directly related to his service connected L4 fracture. The examiner did not find that the Veteran's degenerative arthritis was a continuation of his in-service complaints but related those complaints to his bilateral foot radiculopathy. However, the Board notes that the Veteran was diagnosed with arthritis within 5 years of the end of his 20 years of active duty service. The Veteran complained of foot pain on his separation examination and no X-rays were performed within any proximity of his service to specifically rule out degenerative arthritis. The 1995 examination showed foot pain, but again no diagnostic tests ruled out the presence of arthritis in the Veteran's feet. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the Veteran's bilateral feet is warranted. Denial of service connection is warranted when the preponderance of the evidence is against the claim. Regarding the Veteran's bilateral foot arthritis, the preponderance of the evidence is not against the claim. Prior VA examinations were found to be inadequate, and the September 2021 examiner did not opine that the Veteran's arthritis was not related to his active duty service. He focused his opinion on the Veteran's radiculopathy. Thus, there is no direct evidence against the Veteran's claim. Furthermore, the Veteran has undergone numerous examinations and continuing to seek out negative evidence is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, the Board finds that service connection for the Veteran's bilateral foot disabilities diagnosed as degenerative arthritis and radiculopathy is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.