Citation Nr: 22017945 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-06 779 DATE: March 27, 2022 ORDER Service connection for a left foot condition is denied. Service connection for a right foot condition is denied. FINDING OF FACT The evidence of record does not support a finding that the Veteran's bilateral foot disorders are related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot condition are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38C.F.R. §§3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to May 1982. In October 2019, the Veteran testified at a hearing before the undersigned Veterans' Law Judge. A copy of the proceedings is associated with the electronic claims file. These matters have a procedural history which includes a Board Decision in December 2020 and a July 2021 Order of the Court of Appeals for Veterans Claims (Court) which enacted a Joint Motion for Remand (JMR) vacating the Board's Decision regarding service connection for the above captioned claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38C.F.R. §3.303(d) Left Foot Condition Right Foot Condition The Veteran has sought service connection for disorders of his bilateral feet. After review of the record, the Board finds that the evidence of record does not persuasively show a link between the Veteran's currently diagnosed foot disorders and his active duty service. The record establishes that the Veteran did have in-service treatment for his feet. The Veteran's service treatment records (STRs) noted two injuries to his right foot in July 1980 one when he dropped a weight on his right foot and a second where he dropped an ammo trailer on his right foot. Both injuries were found to have caused right foot contusion. The Veteran's STRs also note injury to his right ankle after he was startled by a car. A December 1981 STR indicated the Veteran was in an ace bandage and was advised to use crutches for 10 days. A January 1982 STR showed the Veteran had peeling skin on both his heels. VA medical care records from October 2007 show the Veteran had a complete foot care examination. The Veteran did not report foot pain. A January 2008 primary care record showed the Veteran reported the onset of a pins and needles sensation in his feet. He did not report foot pain or that pain had been present in and since his active duty service. Follow-up care records in January 2008 with a podiatrist show that the Veteran reported foot pain which had been persistent for the prior month. He denied trauma to his foot or ankles. A March 2009 VA medical record showed the Veteran denied foot pain. A January 2010 VA medical record shows the Veteran reported left great toe pain. He reported he dropped a table on his left great toe years ago and had a history of gout. Follow-up medical care in January 2010 showed the Veteran reported the pain had gone away and he no longer had pain in his left great toe joint. In April 2012, the Veteran reported neuropathy foot pain. Another instance of left toe/foot gout pain was reported in June 2014. In a September 2015 record, the Veteran reported that everything was fine with his feet. A January 2019 podiatry note showed the Veteran denied foot pain and that the nurse indicated that pain was not present, but that the Veteran also said he had bilateral foot pain. An April 2019 nursing care note shows the Veteran reported left and right foot pain which began 2 weeks prior. A December 2020 VA record shows the Veteran reported foot pain at a 5 out of 10 which was neuropathy pain. He also reported dropping a glass table on his left great toe many years prior and that he did not have pain from that toe. Podiatry notes in March 2010, September 2010, September 2011, January 2013, July 2013, August 2013, April 2014, April 2015, August 2016, March 2019, February 2020, and March 2021 show that the Veteran had comprehensive examinations of his feet and without report of foot pain which persisted in and since his active duty service. The Veteran testified in his October 2019 hearing that he dropped an ammo trailer on his left foot, dropped a weight on his right foot, and was placed in a cast after a December 1981 injury and was on crutches for 3 months. He also stated that after his in-service injuries he continued to have foot pain which has persisted since his active duty service. The Veteran's wife testified that he had foot pain prior to his diagnosis of gout and diabetes mellitus, type II. Pursuant to the terms of the JMR, VA obtained a new examination of the Veteran and addendum opinion in January 2022. The examiner specifically stated that the Veteran's lay statements and the October 2019 hearing testimony of the Veteran and his wife had been considered. The examiner noted that she had reviewed the record, including the remand instructions. After review of the record, including the Veteran's statements and the October 2019 hearing testimony, the examiner found it less likely than not that the Veteran's bilateral foot disabilities were related to his active duty service to include his in-service documented foot injuries. The examiner noted that the Veteran's 2010 foot X-rays did not show any prior fracture of his bilateral feet. The Board notes that there is no other evidence of record to address the etiology of the Veteran's bilateral foot conditions and the Veteran has not identified or introduced into evidence any record which contradicts the findings of the January 2022 examiner. As to the Veteran's statements that he had foot pain since his in-service accidents, the Board finds that these statements are directly contradicted by the record. The record establishes the Veteran as an inaccurate historian and the Board affords those statements no probative weight. First, the Veteran's STRs do not show that he suffered a left foot injury in-service. His documented in-service injuries were to his right foot. Thus, his testimony that he dropped an ammo trailer on his left foot is directly contradicted by his STRs. There are no STRs which show that the Veteran had any documented in-service injury to his left foot. The Board, then, does not find that the Veteran's report of in-service injury to his left foot and continued pain as a result of that injury credible. The Board also notes that the Veteran's report of being on crutches for three months is also contradicted by the evidence of record. The Veteran's STRs clearly show that he was advised to use crutches for 10 days and return to duty. There are no records which support the Veteran's statements that he was on crutches for longer than the advised 10 day period. It is reasonable to expect that a three month period of time on crutches while on active duty would have resulted in some record or medical profile being generated and documented in the Veteran's military personnel or medical file. Yet, no such profile or documentation exists. Furthermore, the Board notes that the January 1982 STR which discussed the peeling skin on the Veteran's feet did not note that the Veteran was in a cast, used an ace bandage, or was on crutches for either of his feet. He was advised not to run his physical fitness in his jump boots, an activity that he would not have been advised to do had he presented with an injured right foot or on crutches. Additionally, a February 1982 STR shows the Veteran reported posterior cramp after running. Clearly, the Veteran would have been unable to perform such an activity had his right foot been in a cast or ace bandage and he had been using crutches. Thus, the Board relies on the absence of such documentation to find that the Veteran is inaccurate when he states that he was on crutches for three months. Second, the Veteran's VA medical care specifically showed that the Veteran did not report foot pain had originated in and continued since his active duty service. Indeed, the Veteran's VA medical records, which span over a decade of care, do not contain a record wherein the Veteran reports that he has had foot pain which originated in and continued since his active duty service. Even his podiatry records, which focus on the care and treatment of the Veteran's feet, do not contain a history which includes foot pain since his active duty service. The January 2008 VA medical record showed the Veteran specifically denied accident or trauma to his feet. Even for the times the Veteran presented with or sought treatment for care, he did not report pain which originated and persisted since service. The January 2022 examiner specifically noted that the Veteran stated that he did not have foot pain after his in-service injuries until he was about 40 years old. As noted by the January 2022 examiner, the Veteran sought podiatry throughout his VA medical care. As a podiatrist is a specialist in the care of one's feet, it is reasonable to expect that the Veteran would report consistent foot pain since the 1980's to a medical professional from whom he sought treatment for foot pain. In that regard, the Veteran had no reason to withhold information about his claimed foot pain for years since his in-service injuries; yet he did not report it to his specialty treatment provider. However, the Veteran's podiatry record is silent for any report of foot pain since his active duty service. Thus, the failure of the Veteran to report his continued pain since service weighs against a finding that such continuity of symptomology was present. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As to the Veteran's wife's statements regarding the Veteran's foot pain, there is no indication that any pain the Veteran's wife reported is related to the Veteran's in-service right foot injuries. She has not been shown to have the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Furthermore, the Veteran's wife did not testify that the Veteran's foot pain had originated in service and continued since that time. Thus, her testimony does not provide a link between the Veteran's service and his bilateral foot conditions. The Board notes that in a March 2022 Informal Hearing Presentation, the Veteran's representative stated that the January 2022 examiner was identified as a physician's assistant and would not have competence or expertise in the field of podiatry. However, the January 2022 examiner's statement about the Veteran's podiatry notes merely indicated that as a podiatrist was a foot care specialist, the failure of the Veteran to report foot pain to the foot care specialist was significant; the Board concurs as discussed above. Based on the foregoing, the Board finds that there is no credible and probative evidence of record which supports a finding that the Veteran's foot conditions are related to his active duty service. As such, the evidence does not persuasively show that the Veteran's foot conditions are related to his active duty service and the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.