Citation Nr: 22015344 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-18 564 DATE: March 17, 2022 ORDER New and material evidence has been received to reopen a claim of service connection for bilateral foot disorder is granted. Entitlement to service connection for a bilateral foot disorder is denied. FINDING OF FACTS 1. A January 2011 rating decision denied the Veteran's service connection claim for a bilateral foot disorder. The Veteran was notified of this decision and her appellate right, but she did not initiate a timely appeal. The January 2011 rating decision is the most recent prior final denial. 2. Evidence received since the final January 2011 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a bilateral foot disorder. 3. The evidence of record persuasively weighs against finding that a bilateral foot disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The January 2011 rating decision that denied the claim of entitlement to service connection for a bilateral foot disorder is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. The criteria for whether new and material evidence exist to reopen a claim of service connection for bilateral foot disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a bilateral foot disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had ACDUTRA service February 1976 to July 1977. As indicated in a March 2012 National Personnel Records Center (NPRC) letter, the Veteran was not issued a DD-214 because the Veteran had no active service or less than 90 consecutive days of active duty for training. As explained below, generally, no presumptions including the presumptions of soundness, aggravation, or presumptive diseases apply to periods of ACDUTRA. In a January 2011 rating decision, the Board denied the Veteran's service connection claim for a bilateral foot disorder. The Veteran submitted a February 2011 Notice of disagreement requesting a de novo review by a Decision Review Officer. In an April 2013 statement of the case, the RO confirmed and continued the prior denial of the Veteran's service claim for a bilateral foot disorder. The was notified of this decision and her appellate right, but she did not initiate a timely appeal. The January 2011 is the most recent prior final denial. The Veteran submitted a June 2014 request to reopen her bilateral foot disorder claim. The reopening of the Veteran's claim was denied in a February 2016 rating decision based on a finding of no new and material evidence. The Veteran filed an April 2016 VA Form 21-0958, Notice of Disagreement. The RO issued a March 2017 statement of the Case denying the reopening of the Veteran's claims based on a findings of no new or material evidence. The Veteran filed an April 2017 Form 9 Appeal to the Board. The Veteran submitted a July 2021 request in writing to cancel her October 2021 scheduled hearing before the Board and requested that a decision be made with the evidence of record. The Veteran's representative submitted a subsequent informal hearing presentation to the Board. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The analysis in determining whether new and material evidence has been received is undertaken by comparing newly received evidence with the evidence previously of record. Here, it is concluded that the evidence received is new and material as there is current evidence showing that she meets the criteria for service connection under the applicable provisions. For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Laws and Regulations Whether new and material evidence exist to reopen a claim of service connection for a bilateral foot disorder At the time of the January 2011 most recent prior final rating decision, the evidence consisted of service treatment records reflecting in-service treatment for foot problems and VA and private treatment records reflecting treatment for foot problems. Since the January 2011 most recent prior final rating decision, the evidence now includes additional VA and private treatment records diagnosing foot problems, VA examinations diagnosing degenerative arthritis of the feet, and lay statements by the Veteran supporting a nexus between her foot disability and her time in-service. The evidence submitted does raise the possibility of substantiating an unestablished fact necessary to pursue the claim. The clinical or objective evidence submitted by the Veteran substantiates an in-service claim for which service connection may be granted. Accordingly, the claim of entitlement to service connection for a bilateral foot disability is reopened. As noted above, for the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. See Justus, 3 Vet. App. at 513. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to the element of a current disability, current means near the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability refers to the functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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, n. 4 (Fed. Cir. 2007). However, laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board must then determine if the evidence is credible; in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Under 38 U.S.C. § 101 (24) "active military, naval, or air service" includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty; and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. For the purposes of determining service connection based on Reserve service, ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1131. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA for service connection to be granted. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) apply to periods of ACDUTRA and INACDUTRA unless "Veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to an appellant who had only ACDUTRA service and who is not otherwise a Veteran. Id. Even for Veterans who have achieved "Veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the Veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Valerie Y. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In essence, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the appellant claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the appellant has not achieved "Veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "Veteran" status, the claimant must demonstrate both elements of aggravation (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). See Donnellan, 24 Vet. App. 167. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. See Donnellan, 24 Vet. App. 167. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. Accordingly, the burden to establish incurrence or aggravation in service remains with the appellant. Entitlement to service connection for a bilateral foot disorder As indicated in a March 2017 VA foot examination, the clinical records establish that the Veteran has ongoing bilateral degenerative arthritis foot disorder since 2013. The Veteran contends that the onset of her bilateral foot disorder is related to her time in-service. In a November 1975 Report of Medical History, the Veteran reported in the negative for a history of foot trouble or arthritis. In a November 1975 Report of Medical Examination, a clinical evaluation reveal normal feet. November 1975 STRs reveal that the Veteran underwent an orthopedic consultation. The examiner noted intact achilles and patella reflexes with no weakness of the great toes or common toe extensors. March 1976 STRs reveal that the Veteran underwent physical therapy for her arches. May 1976 STRs reveal that the Veteran presented with blisters across the bottom of her feet and heels with arch pain also noted. The Veteran was prescribed arch supports. May 1976 STRs reveal that the Veteran reported bilateral foot pain for two weeks. X-rays were negative for bone joint abnormality with no edema noted. The examiner diagnosed the Veteran with a planter fascial strain. May 1976 STRs reveal that the Veteran has pain in both arches with palpitation on plantar fascia bilaterally. In a May 1976 STR physical therapy slip profile, the medic diagnosed a fascial strain and placed the Veteran on a limited profile with no running, marching over one mile, standing, jumping, or squatting. May 1976 STRs reveal that the Veteran reported with foot pain. the examiner diagnosed the Veteran with a fascial strain and prescribed a steroid injection. The Veteran was placed on a limited profile. In a May 1976 STR, the examiner noted that the Veteran was undergoing physical therapy for her fascial strain disorder. The examiner noted that the Veteran reported no improvement after undergoing physical therapy. In a May 1976 STR, the examiner noted that the Veteran is experiencing persistent fascial strain of the feet and needs an evaluation of the feet to determine if the Veteran can remain in the reserves. In a June 1976 statement, the Veteran reports that she began experiencing foot pain when she was in-service. She reports being placed on a medical profile and undergoing physical therapy. The Veteran was placed on a five day profile. In a November 1976 Report of Medical History, the Veteran reported in the positive for a history of foot trouble. The Veteran explained that she experienced foot problems during basic training and was unable to complete. In a November 1976 Report of Medical Examination, a clinical evaluation revealed a podiatry note indicating a diagnosis of transitory acute planter fascitis while in a hot climate which was complicated with foot and ankle edema. The examiner noted that the Veteran now work fulltime in a cannery on her feet all day with no problems and no symptoms. In a November 1976 Statement of Medical Condition, the Veteran verified that she underwent a separation examination more than three working days prior to separation and there is no change in her condition. October 2011 VA X-ray findings reveal no acute fracture or dislocation of the feet. The examiner noted that alignment is maintained with small plantar calcaneal spurs noted, slightly larger on the left side. In an August 2011 VA podiatry consult, the examiner diagnosed the Veteran with plantar fascitis bilaterally and prescribed custom orthodontics. In a December 2012 orthopedic surgery consult, the Veteran reported longstanding foot pain which began in-service. The Veteran also reported that she saw a foot doctor after discharge from service. The clinician diagnosed the Veteran with normal bony architecture with normal muscle function, palpable pulses, and sensation without compromise. The clinician diagnosed that the Veteran does not have classic planter fascitis symptoms, but perhaps plantar fascitis is playing a role. February 2012 private treatment records reveals that the Veteran underwent shoe insert fittings. In a February 2013 VA foot disorder examination, the examiner diagnosed the Veteran with degenerative joint disease of the feet. The examiner opined that it is less likely than not that the Veteran's foot disorder was incurred in or caused by an in-service injury, event, or illness. The examiner explained that the findings of degenerative joint disease of the joint of the feet are expected normal wear and tear changes in the joints and toes of a sixty-one year old female. July 2016 VA outpatient treatment records reveal that the Veteran presented with foot pain. The examiner noted that the Veteran's STRs from the Army reserves clearly documents plantar fascitis of the feet with foot swelling. The Veteran reported that she received foot injections in-service and that she experienced residual swelling which is medicated by over the counter medication daily. The examiner diagnosed the Veteran's bilateral plantar fascitis as a long-standing problem that developed in-service. In reaching this conclusion, the Board finds that the treating clinician was not aware that the Veteran did not serve on active duty at the time she underwent in-service treatment for her of her foot problems. In a March 2017 VA foot examination, the examiner diagnosed the Veteran with degenerative arthritis of the feet bilaterally with an onset of 2013. The examiner opined that it is less likely than not that the Veteran's degenerative arthritis of the feet disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran was treated for foot pain in-service and was in-fact discharged from service because of her foot pain. The examiner noted that the Veteran worked in home care for many years post service. The examiner also explained that the Veteran made a claim for foot pain in 2013 and at that time it was determined that the only foot abnormality noted was mild arthritis without the benefit of a physical or X-ray evidence of plantar fascitis. The examiner noted that the Veteran's current examination fails to reveal significant foot pain or tenderness consistent with plantar fascitis and because the Veteran already has an established diagnosis of degenerative joint disease of the feet, no further X-rays were obtained. The foregoing summary of the treatment record reveals no possibility for service connection for service connection for a bilateral foot disorder. Although the Veteran underwent treatment in-service for plantar fascistic and a fascial strain, a clinical evaluation of the Veteran's feet in a March 2017 VA examination revealed no significant foot pain or tenderness consistent with plantar fascitis. The examiner did diagnose the Veteran with degenerative arthritis of the feet bilaterally with an onset of 2013. The examiner also noted that the Veteran worked in home health care for many years after service which might have caused the onset of her degenerative arthritis of the feet. The Board also considered the Veteran's service treatment records which reveal a November 1976 podiatry note indicating that the Veteran now worked fulltime in a cannery on her feet all day with no foot problems and no symptoms. The Veteran is competent to report what happened in service as well as competent to report issues such as a planter fascitis and a fascial strain in-service. See Jandreau v. Nicholson, 492 F. 3d at 1377, n. 4. However, the records appear complete and does not show a current diagnosis of a planter fascitis or a fascial strain in the Veteran's most recent March 2017 VA foot examination. The examination did diagnose arthritis of the feet attributed to the Veteran's post-service employment. As such, the Veteran's statements are assigned less weight as a result. The Board also notes the conflicting July 2016 VA outpatient treatment records which diagnose the Veteran's bilateral plantar fascitis as a long-standing problem that developed in-service. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The basis of the July 2016 clinician's conclusion centered around the premise that the Veteran served on active duty. As the clinician did not have access to the Veteran's service personnel records, she may not have understood that the Veteran did not serve on active duty and is therefore not entitled to the presumption of soundness, aggravation, or presumptive diseases which generally do not apply to periods of ACDUTRA. The conclusion is assigned less weight. In sum, as indicated by the March 2017 examiner, the Veteran has a current diagnosis of degenerative arthritis of the feet bilaterally, but not an ongoing chronic diagnosis of planter fascitis or a diagnosed fascial strain, which she was treated for in-service. Moreover, the Veteran did not have a diagnosis of arthritis of the feet in-service. The examiner opined that it is less likely than not that the Veteran's degenerative arthritis of the feet disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner attributed the Veteran's arthritis of the feet to her many year of work post-service in home care. Furthermore, as indicated above, arthritis is a presumptive disorder and generally, no presumptions apply to periods of ACDUTRA as the Veteran did not serve 90 days on active duty. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.