Citation Nr: 22052154 Decision Date: 09/13/22 Archive Date: 09/13/22 DOCKET NO. 17-41 738 DATE: September 13, 2022 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral foot disability is denied. FINDINGS OF FACT 1. The probative and competent evidence is against finding that the Veteran's back disability manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability was not otherwise etiologically related to an in-service injury, event, or disease. 2. The probative and competent evidence is against finding that the Veteran's bilateral foot disability had its onset during active service or is otherwise related to active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1982 to February 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in March 2019 and September 2021 for additional development. In March 2022, the Board again remanded the claims for addendum opinions. Having fully reviewed the claims file, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the prior remand directives to the extent possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence other than as noted in the remand portion below. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Elements of service connection may also be established by showing continuity of symptomatology under 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, at 53. 1. Service connection for a low back disability The Veteran claims that service connection is warranted for a low back disorder. Specifically, the Veteran contends that this disorder is due to service or, alternatively, is proximately due to his bilateral foot disability. The question for the Board is whether the Veteran has a chronic back disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it was otherwise related to service. The Board has considered the evidence of record; however, the most probative evidence demonstrates there is no nexus between the Veteran's current back disability and his military service. First, while the Veteran has a back disability, best characterized as degenerative arthritis of the spine with L4-5 left forminal-extraforaminal disc bulge as endorsed by the January 2020 examiner, there is no persuasive evidence showing the back disability became chronic during service or manifested to a compensable degree within a presumptive period, and continuity of symptomatology is not established. Specifically, while the Veteran is competent to report having experienced symptoms of back pain and related symptoms in service and since service, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a back disorder. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d 1372, 1377. Further, the Veteran did not report any back pain during active duty, and subsequent medical records do not show any complaints of recurrent back pain until almost three decades later in 2012. Therefore, there is no indication the Veteran's back disability had manifested to a compensable degree within one year of separation. In addition, in his separation examination in 1985, his clinical evaluation was marked as normal. Further, the Board notes that there are several service records of medical treatment and complaints for other issues, which weighs heavily against any assertion he had injured his back and had chronic back pain as well, because it is reasonable to assume that since he was taking the time to receive medical care and to complete the medical history forms and affirmatively indicate the medical problems he had, he would have also reported any ongoing back pain. The fact he did not do so weighs heavily against any allegations he had recurring back pain from 1982 when he was in bootcamp on. Therefore, there is no persuasive evidence of a chronic back disorder during service nor of continuity of symptoms following service. That notwithstanding, the Board must also consider whether service connection for the back disability may still be granted on a non-presumptive direct-incurrence basis; however, the evidence is against finding that a medical nexus exists between the Veteran's back disability and an in-service injury, event or disease. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). As such, as noted above, subsequent to the March 2022 Board remand, addendum opinions, dated May 2022, were associated with the claims file. In the May 2022 addendum opinion, the examiner opined that it is less likely than not that the Veteran's back disorder was incurred in or caused by service or related to service or within one year of discharge during service. The examiner considered the Veteran's medical history and records and contentions and noted that his back disability was diagnosed years after service. The examiner also discussed and considered the Veteran's service medical records and noted the separation examination had no back disability listed. While the fact that a veteran's condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury; in this case, the examiner considered the evidence and ultimately opined that "subjective symptoms of back discomfort are insufficient to establish a medical diagnosis of a chronic disability. With a chronic back disability, there should be clinical findings on physical exam. However, physical findings consistent with a chronic back disability are lacking during service." Her rationale further included that there were no physical findings after the Veteran's spine exam during service and at separation, and the military examiner reported completely normal physical findings of the spine. Therefore, the examiner opined that there was no objective evidence of a chronic back condition in service. Further, the examiner considered the Veteran's medical history, and opined that his "current back condition relates to age, a lifetime of daily wear and tear activities and weight." She cited to Johns Hopkins Medicine medical literature that "it is well known that arthritis of the spine often increases with increasing maturity... "one of the more unfortunate aspects of getting older is that your joints begin to wear out, oftentimes for no good reason. This wear and tear of the joints is not only common in the knees and the hips but also in the spine." The examiner further opined that the Veteran's back disability is also likely due to his obesity. Her rationale included citation to medical literature that "the prevalence of diagnosed spine degeneration was higher in obese individuals" and noted that the Veteran's BMI is above 30, which is consistent with obesity. She cited further to the Mayo Clinic that "excess body weight puts extra stress on your back." Finally, although the Veteran is not service connected for a bilateral foot disability, the examiner considered his contentions, but ultimately opined that the Veteran's back disability is not proximately due to or aggravated by his bilateral foot disability. Her rationale was that there is no evidence that his feet conditions "caused major muscle or nerve damage with paralysis or leg discrepancy of more than 5cm that would result in a substantially altered biomechanics or postural instability that could possible affect the back." Her rationale included discussion of his most recent physical examination, which noted that the Veteran's bilateral foot disability has not "resulted in such severe deformity, marked displacement, or limb rotation that could possibly alter biomechanics and/or postural stability sufficiently to cause damage or aggravation to his back." In sum, the examiner opined that the Veteran's "back condition has followed the natural course of degenerative disease (to include, but not limited to degenerative disc disease and L4-5 left forminal-extraforaminal disc bulge), especially in the setting of aging and elevated BMI." In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the Board finds that the VA opinion is probative. Specifically, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, considered the records in the file, included alternative etiology opinions with rationale, cited to medical literature to support the rationale, and furnished a reasoned analysis for the conclusions. The examiner also accepted the lay statements of the Veteran, but still found that any subjective back pain from service was not related to the current condition. The Board therefore attaches significant probative value to this opinion. There are no other opinions to the contrary. While the Veteran believes his current back disability had onset during service or is related to an in-service injury, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at1377. Consequently, the Board gives more probative weight to the competent medical evidence. As such, the Board concludes that the totality of the medical evidence, especially the negative VA nexus opinion, the service treatment records indicating he did not report any complaints or treatment for any back pain, and the lack of medical records indicating ongoing back pain and treatment, all weigh against the claim, and are more persuasive than any evidence in favor of the claim. Additionally, the Board finds that the VA examiner's opinion is more probative in this matter and outweighs any of the Veteran's assertions. As such, entitlement to service connection for a back disability is denied. 2. Service connection for a bilateral foot disability The Veteran claims he should be service connected for his current bilateral foot disability, contending that they were injured in service during bootcamp. More specifically, the Veteran stated that approximately five to six weeks into basic training, he began to have pain in both of his feet and that he believed that, due to this incident, he continued to have issues with his feet. The question for the Board is whether the Veteran has a bilateral foot disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it was otherwise related to service. The Board has considered all of the evidence, but the most probative evidence demonstrates there is no nexus between the Veteran's current bilateral foot disability and his military service. First, while the Veteran has a current bilateral foot disability, best characterized as bilateral pes planus (flat foot) and plantar fasciitis, as endorsed by the January 2020 examiner, there is no persuasive evidence showing the bilateral foot disability became chronic during service or manifested to a compensable degree within a presumptive period, and continuity of symptomatology is not established. The Veteran's service treatment records show he reported right foot pain in 1982 with pain on palpation, but the doctor noted he had no history of trauma. In March 1984, he reported left foot pain, but there was no history of trauma and no swelling or ecchymosis noted. The examiner noted he had no real pain on deep palpation except at the base of his fifth metacarpal, which was mild. He was diagnosed with soft tissue trauma of the left foot and put on limited duty for six days. March 1984 foot series revealed normal mineralization with no fractures or osseous abnormalities. His joint spaces were also well maintained. The impression was "normal foot series." While the Veteran is competent to report having experienced symptoms of foot pain and related symptoms in service and since service, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a foot disorder. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d 1372, 1377. Further, although the Veteran reported left foot pain in service, subsequent medical records do not show any complaints of recurrent foot pain and the foot imaging in service revealed normal feet. In addition, there are no records indicating treatment or complaints of foot pain until almost three decades later in 2012, wherein his private records noted he was prescribed foot orthotics. Therefore, there is no indication the Veteran's bilateral foot disability had manifested to a compensable degree within one year of separation. In addition, in his separation examination in 1985, his clinical evaluation for his feet was marked as normal. That notwithstanding, the Board must also consider whether service connection for the bilateral foot disability may still be granted on a non-presumptive direct-incurrence basis; however, the evidence is against finding that a medical nexus exists between the Veteran's feet disability and an in-service injury, event or disease. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). As such, as noted above, subsequent to the March 2022 Board remand, the Veteran was afforded addendum opinions in May 2022 to determine whether his current bilateral foot disorder is related to service. The Veteran has stated that his foot pain and issues were caused because of fallen arches that occurred during bootcamp. The examiner opined that it is less likely than not that the Veteran's bilateral foot disorder was incurred in or caused by service or related to service to include the bilateral foot complaints in service. The examiner considered the Veteran's medical history and records and contentions and (as noted above), his service records, which showed reports of right and left foot pain; but she opined that there "is no evidence of a bilateral foot disability to include plantar fasciitis or pes planus during service." The examiner's rationale included that his foot disability was diagnosed years after service and his separation examination had no foot disability listed. While the fact a veteran's condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury; in this case, the examiner considered the evidence and pointed out that the Veteran's "physical exam of both feet is reported as normal on separation" and as there were no physical findings after the Veteran's foot exam during service and at separation, the military examiner reported completely normal physical findings of the feet despite the Veteran having had reported foot pain in 1982 as to the right foot and in 1984 as to the left foot. Therefore, the examiner opined that there was no objective evidence of a chronic foot condition in service. The examiner further cited to the Mayo clinic that "age and obesity are risk factors for plantar fasciitis. Plantar fasciitis is more common in people between age 40 and 60 [which is] consistent with the date of onset. Excess body weight puts extra stress on the plantar fascia." She further opined and cited to medical literature that "flat feet disability has specific physical findings. As per Cleveland Clinic, some people develop flat feet later in life. Vet's elevated BMI is a risk factor for the development of this condition." The examiner pointed out that the Veteran's medical records indicate that he is obese as part of her rationale. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez, 22 Vet. App. 295. In this case, the Board finds that the 2022 VA opinion is probative. Specifically, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, considered the records in the file, included an alternative etiology with rationale, cited to medical literature to support the rationale, and furnished a reasoned analysis for the conclusions. The examiner also accepted the lay statements of the Veteran, but still found that any foot pain from service was not related to the current condition. The Board therefore attaches significant probative value to this opinion. There are no other opinions to the contrary. While the Veteran believes his current bilateral foot disability had onset during service or is related to an in-service injury, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. (CONTINUED ON NEXT PAGE) As such, the Board concludes that the totality of the medical evidence, especially the negative VA nexus opinion, the service treatment records indicating any foot pain in service had resolved, and the lack of medical records indicating ongoing foot pain and treatment, all weigh against the claim, and are more persuasive than any evidence in favor of the claim. Additionally, the Board finds that the VA examiner's opinion is more probative in this matter and outweighs any of the Veteran's assertions. As such, entitlement to service connection for a bilateral foot disability is denied. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.