Citation Nr: 22019501 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-58 529 DATE: April 1, 2022 ORDER Entitlement to service connection for a right foot disability is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's current right foot disability began during active service, manifest within a year of separation from service, or is otherwise related to an in-service injury, illness, or disease. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from September 1973 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 decision, the Board remanded this appeal for additional development. It has now returned to the Board for further appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if 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). Entitlement to service connection for a right foot disability. The Veteran contends that his current right foot disability is related to parachute jumps performed during active service nearly 50 years ago. The Veteran has a current diagnosis for polyneuropathy of the right foot. The Veteran's DD-214 shows that the Veteran attained a parachute badge during active service. The Veteran has reported that he participated in numerous parachute jumps during active service. The Veteran has also described the severe trauma and injury associated with these jumps. A review of the Veteran's service treatment records does not reveal any complaints, treatment, symptoms, or diagnosis of a right foot disability or injury. In a November 1976 Report of Medical Examination, the examining physician found the Veteran's feet and lower extremities to be normal. The Veteran's post service treatment records show that the Veteran contacted his VA primary care physician in February 2016 to schedule an appointment due to swelling and tingling in the right foot. The Veteran reported tingling in his right foot for the past 3 months, decades after service. The stated that his foot feels swollen but does not appear swollen. He stated that he feared that the numbness in his right foot was due to diabetes or circulation problems. He made no reference to service. At his March 2016 primary care appointment, the Veteran reported that he had numbness in both legs after sleeping in his car for two days during very cold weather in November 2015. The Veteran reported tingling in his right foot and toes for the past 5 months. The Veteran was placed on prescription medication (Gabapentin) for the tingling. At a June 2016 primary care annual evaluation, the Veteran reported that the tingling of the right foot had improved and was now only in the toes. In July 2016, the Veteran was provided an electrodiagnostic medicine consultation for his right foot numbness. An EMG study was conducted to evaluate whether the Veteran had any nerve damage in his lower extremities. The clinician opined that that the electrodiagnostic study was essentially normal. The clinician found no evidence of a large fiber sensory, motor polyneuropathy, peroneal sensory, or motor neuropathy of the lower extremities. The clinician advised the Veteran to watch his diet and continue to remain tobacco free. In a June 2016 primary care evaluation, the Veteran reported that he continues to have tingling in his right foot. The Veteran received a neurology consultation and evaluation in September 2019. The neurologist noted the onset of right foot numbness in 2016 followed by bilateral foot paresthesias. Upon examination, the neurologist found impaired distal LE PP, VS, and MSR. The Veteran was diagnosed with polyneuropathy. The neurologist found that the causes of the Veteran's neuropathy include prediabetes and hypertriglyceridemia. In a February 2020 neurological followup evaluation, the examining neurologist noted that the laboratory workup for neuropathy revealed significantly elevated B6 and HbA1c within the diabetic range. The neurologist found that the caused of the Veteran's polyneuropathy include type II diabetes, B6 toxicity, and hypertriglyceridemia. The neurologist recommended treatment of diabetes to prevent progression of polyneuropathy. The Veteran was advised to stop all B6 supplementation due to risk of B6 toxicity induced sensory polyneuropathy. The Veteran was provided a VA examination for peripheral nerve conditions in November 2019. The examiner was diagnosed with bilateral polyneuropathy of the feet. The Veteran reported that his nerve condition began 3 to 4 years ago with a tingling sensation in his right foot that has spread to his left foot. The examiner found mild intermittent pain and mild paresthesias/dysesthesias in both feet. The examiner found decreased sensation of the feet/toes bilaterally. The examiner found mild incomplete paralysis of the musculocutaneous nerve and posterior tibial nerve bilaterally. The examiner found that the Veteran's right foot condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner performed a physical exam and thorough record review. The examiner noted that the Veteran reported the onset of symptoms of right foot neuropathy at around three to four years ago. The examiner also noted that, although the claimant reported that he participated in approximately 30 parachute jumps during his military career, there are no service treatment records for injuries from these jumps that resulted in complaints of right food injury. The examiner agreed with September 2019 neurological examination that found prediabetes and hypertriglyceridemia to be the cause of his polyneuropathy. The examiner reported that The Foundation for Peripheral Neuropathy lists causes of peripheral neuropathy to include diabetes, chemo-induced neuropathy, hereditary disorders, inflammatory infections, auto-immune diseases, protein abnormalities, exposure to toxic chemicals (toxic neuropathy), poor nutrition, kidney failure, chronic alcoholism, and certain medications especially those used to treat cancer and HIV/AIDS. The examiner stated that the type of nerve injury that would be caused from parachute jumps would more likely result from a musculoskeletal injury at the nerve root that leads to symptoms of radiculopathy. The examiner explained that neuropathy is the result of dysfunction of the specific peripheral nerves caused by an entrapment of the nerve, a vitamin or nutritional deficiency, diabetes, or other metabolic problems. The examiner also noted that the Veteran is a tobacco user, and it is general medical knowledge that this can have a compounding effect on neuropathy related to vessel constriction especially when coupled with diabetes. The examiner concluded that based on general medical knowledge of the causes of neuropathy, the lack of evidence in the claimant's service treatment records noting foot injury or complaints, and the physical exam today, the diagnosed polyneuropathy of right foot is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the opinion of the November 2019 examiner as to the etiology of the Veteran's right foot condition to be highly probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No etiological opinions or suggestions are contained in the record that relate the Veteran's right foot disability to service. Additionally, the Veteran's available service and post-service treatment records indicate that his symptoms of numbness and tingling of the feet began many years after service. Here, there is no competent evidence of a nexus between service and the Veteran's right foot disability. The only evidence of record in support of such a nexus is the Veteran's lay opinion that the condition is due to service. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between this condition, identified many years after service, and service are of little probative value. While the Veteran may now have this problem, connecting it to service more than 40 years ago is a complex matter. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. Here, there is no competent and probative evidence to show that the Veteran's current foot condition began during active service; manifest within a year of separation from service; or is otherwise related to an in-service injury or disease. Given the foregoing, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for service connection for a right foot disability and that the claim must be denied. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for a right foot disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.