Citation Nr: 23015263 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 17-40 330 DATE: March 14, 2023 ORDER Entitlement to service connection for a recurrent right foot disability, to include pes planus, degenerative joint disease (arthritis), and plantar fasciitis, is denied. Entitlement to service connection for a recurrent left foot disability, to include pes planus, arthritis, and plantar fasciitis, is denied. FINDING OF FACT The Veteran's left and right foot disabilities, including pes planus, arthritis, and plantar fasciitis, are not shown to have been present in service, were not disabling at a compensable level within the one year presumptive period or for many years thereafter, were not related to or caused by service, were not caused or aggravated by her service-connected disabilities, and the symptoms have not been continuous since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a recurrent right foot disability, to include pes planus, arthritis, and plantar fasciitis, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2022). 2. The criteria for service connection for a recurrent left foot disability, to include pes planus, arthritis, and plantar fasciitis, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2022). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1978 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, November 2021, and June 2022, the Board remanded this matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). To prevail on the issue of secondary service causation, generally, the record must show (1) evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The statute "plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, § 1110 provides for compensation for a worsening of functionalitywhether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality." Spicer v. McDonough, No. 2022-1239, 2023 U.S. App. LEXIS 5470, at *10 (Fed. Cir. Mar. 8, 2023) Arthritis is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from active service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to service connection for a recurrent right foot disability, to include pes planus, arthritis, and plantar fasciitis. 2. Entitlement to service connection for a recurrent left foot disability, to include pes planus, arthritis, and plantar fasciitis. The Veteran contends that her current right and left foot disabilities, to include pes planus, arthritis, and plantar fasciitis, are related to or caused by either service or her service-connected disabilities. As an initial matter, the Veteran has current diagnoses of bilateral pes planus, arthritis, and plantar fasciitis. See January 2022 and July 2022 VA examination reports. Next, the Veteran has reported that she injured her foot during service, when she stepped into a hole while playing soccer in 1978. See October 2020 VA examination report. She is also in receipt of service connection for, in pertinent part, right knee degenerative arthritis and residuals of a right great toe fracture. Turning to the issue of etiology, the Veteran was afforded a VA foot conditions examination in October 2020. As explained by the Board in its November 2021 remand, the October 2020 VA examiner's opinions were inadequate, as the opinions were internally inconsistent, based on an inaccurate factual premise, and did not discuss the diagnosed plantar fasciitis. Therefore, the opinions from the October 2020 VA examiner have no probative value. In January 2022, the Veteran was afforded a new VA examination. In March 2022, the January 2022 VA examiner provided etiology opinions as to the Veteran's bilateral foot conditions. The examiner opined that the Veteran's right and left foot disabilities were less likely than not related to service but provided no rationale for his conclusions. Thus, the Board in its June 2022 remand found the January 2022 VA examination and March 2022 opinions to be inadequate and "of essentially no probative value." In July 2022, the Veteran was afforded a new VA examination. In August 2022, the July 2022 VA examiner provided medical opinions regarding the etiology of the Veteran's right and left foot disabilities. The examiner opined that the Veteran's plantar fasciitis, arthritis, and pes planus of the bilateral feet were less likely than not related to service and were less likely than not related to or aggravated by the Veteran's service-connected disabilities. However, the August 2022 VA medical opinions are based on only data and conclusions and did not include a sufficient rationale. Therefore, in September 2022, addendum VA medical opinions were obtained from the July 2022 VA examiner. The examiner again opined that the Veteran's bilateral plantar fasciitis and pes planus were less likely than not related to service, and were less likely than not related to or aggravated by the Veteran's service-connected disabilities. The examiner listed extensive quotations of medical literature on osteoarthritis, pes planus, and plantar fasciitis. These opinions were based on only data and conclusions and did not include a sufficient rationale. Therefore, in October 2022, new VA addendum medical opinions were obtained from the July 2022 VA examiner. The VA examiner explained that the Veteran's pes planus is acquired as it was not noted on her service entrance or separation examination report, which is relevant as it shows no complaints for this condition before or during service. The examiner noted that there is only one service treatment record documenting intermittent swelling and pain in the area of her prior great right toe fracture, without apparent recurrent trauma, diagnosed as a contusion. There was no further documentation for her foot condition until 2006, which is over 20 years after her separation from service. The examiner explained that pes planus acquired can develop due to significant weight gain, which the Veteran had after separation from service. The examiner also explained that there was no medical evidence of plantar fasciitis during service or prior to 2006, and the known causes and risks for plantar fasciitis reflect that the Veteran's plantar fasciitis is more likely due to her significant post-service weight gain, pes planus, and age. Finally, the VA examiner explained that while the Veteran's reports of continuous foot pain since service were considered, it was outweighed by the absence of any medical evidence of foot pain upon separation from service and until 2006. The VA examiner noted that most of the Veteran's initial complaints were for back and knee symptoms, and that she had significant weight gain post-service. The VA examiner explained that individuals with a higher body mass index have a significant increase in foot and ankle problems, as extra body weight can greatly increase pressure on the bottom of the foot, flatten the foot, shorten gaits, and lead to feet angling out more. Common foot problems associated with weight gain include posterior tibial tendonitis, plantar fasciitis, arthritis, ball-of-foot pain, damage to the joints of the foot and ankle, and fractures and sprains of the feet and ankles. When read together, the July 2022, September 2022, and October 2022 VA medical opinions are adequate and highly probative, as they are based on examination of the Veteran and supported by detailed rationales. The Board notes that these negative nexus opinions are the only adequate nexus opinions of record. Therefore, based on a review of the evidence, both lay and medical, the Board finds that the Veteran's current right and left foot disability, to include pes planus, arthritis, and plantar fasciitis, did not initially manifest during service, has not been continuous since service, and did not manifest within one year after service. While the Veteran has reported that her foot pain began during service and has been continuous since service, this is persuasively outweighed by the combined August 2022, September 2022, and October 2022 VA medical opinions, as well as the Report of Medical History and Report of Medical Examination upon her separation from service in which she did not report any foot pain or any other foot symptoms. In addition, the June 2006 VA treatment note is the earliest medical evidence of foot pain. For these reasons, the persuasive weight of the evidence supports a finding that the Veteran's current right and left foot disabilities did not manifest during service or within one year after separation from service and have not been continuous since service. Finally, the Board finds that the Veteran's current right and left foot disabilities are not etiologically related to service or her service-connected disabilities. To the extent that the Veteran has asserted that her right and left foot disabilities are related to or caused by either service or her service-connected disabilities, this is an allegation as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1372, 1377 n.4. Thus, her opinion has no probative value. Therefore, the only competent nexus opinion of record is the July 2022 VA examiner's combined August 2022, September 2022, and October 2022 negative nexus opinions and, as discussed above, these opinions, when read together, are adequate and highly probative. As this is the only competent nexus opinion of record, the Board finds that the persuasive weight of the evidence supports a finding that the Veteran's current right and left foot disability, to include pes planus, arthritis, and plantar fasciitis, is not etiologically related to service or her service-connected disabilities, including based on aggravation. Furthermore, the Board finds that the persuasive weight of the evidence is against a finding that the service connected disabilities resulted in a worsening of functionality of the claimed foot disabilities. In summary, the Board finds that the weight of the evidence does not support an award of service connection for a right and left foot disability, including pes planus, arthritis, and plantar fasciitis, as the arthritis did not manifest during service or within one year after service, arthritis or related symptoms have not been continuous since service, the pes planus, arthritis, and plantar fasciitis are not etiologically related to service, and the pes planus, arthritis, and plantar fasciitis are not etiologically related to or aggravated by her service-connected disabilities. As the evidence weighs persuasively against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.