Citation Nr: A24029738 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 210121-136460 DATE: June 6, 2024 ORDER Entitlement to service connection for bilateral flat feet is denied. Entitlement to service connection for a right hip condition as secondary to bilateral flat feet is denied. Entitlement to service connection for a left hip condition as secondary to bilateral flat feet is denied. Entitlement to service connection for a right knee condition as secondary to bilateral flat feet is denied. FINDINGS OF FACT 1. The evidence of record at the time of the rating decision on appeal does not support a current bilateral foot disability. 2. The Veteran's right hip disorder was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, to include as secondary to his claimed bilateral flat foot disorder. 3. The Veteran's left hip disorder was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, to include as secondary to his claimed bilateral flat foot disorder. 4. The Veteran's right knee disorder was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, to include as secondary to his claimed bilateral foot disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right hip disorder, to include as secondary to bilateral flat feet, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a left hip disorder, to include as secondary to bilateral flat feet, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a right knee disorder, to include as secondary to bilateral flat feet, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard, on periods of Active and Inactive Duty for Training from November 1978 to November 1984. Due to the grant of service connection for another disability, this period is now considered active duty for the purposes of receiving benefits from the Department of Veterans Affairs (VA). This claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision issued by a VA Regional Office (RO). In January 2021, the Veteran filed a timely VA Form 10182. In response, the RO issued a March 2021 notification letter, informing him he had selected the Evidence lane, and that the RO had placed his appeal onto the AMA Review docket. Since the Veteran chose the Evidence Review docket, he received notice that he had 90 days from the Board's receipt of his Form 10182 to submit new evidence. The Board has thus reviewed evidence of record up to the issuance of the January 2020 rating decision, and the 90 days from his January 2021 Form 10182. 38 C.F.R. § 20.300. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that 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). 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). 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. 1. Entitlement to service connection for bilateral flat feet The Veteran seeks service connection for a bilateral foot condition. The Board finds that the claim must be denied. As an initial matter, the Board finds that the evidence of record at the time of the rating decision on appeal does not support a current diagnosis of a bilateral foot disability. Specifically, there are no VA or private treatment records available to document such a disability or any associated symptoms of that disability, nor did the Veteran notify VA of any potentially relevant private treatment records prior to the decision on appeal being issued. He did not indicate treatment for a foot condition at a VA facility prior to the rating decision on appeal being issued. For the Veteran's part, beyond his claim requesting service connection for "bilateral flat feet" there are no lay statements or other indications as to the nature of the condition being claimed or how it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain alone can constitute a disability when it results in actual functional loss as anticipated by the rating schedule). The Board notes he did submit private medical records. While this included a diagnosis of plantar fasciitis of the left foot, it was dated August 2006. Specifically, he told his private clinician that he "stepped off a sidewalk in May of 2006 and injured his ankle." His clinician wrote that he would be re-checked in several weeks, but there is no other evidence post-August 2006 of a foot or ankle condition. In short, the evidence at the time of the rating decision now appealed to the Board did not support a current bilateral foot disability during the pendency of this claim, and thus, the claim fails the primary criterion of service connection. As to the Veteran's reserve service treatment records (STRs), he did complain of foot issues while on INCADTURA. Specifically, in November 1983 he filled out a Report of Medical History in which he answered "yes" to cramps in legs and foot trouble. While a clinician noted "cramps in legs" and "flat feet" during his National Guard periodic examination, they noted "no profile" was needed. There is no Line of Duty (LOD) determination or other indications that such complaints were sustained while on active duty, ACDUTRA or INACDUTRA. Lastly, they noted his feet to be "normal." Turning towards nexus, the Board acknowledges that the Veteran has not been provided a VA examination in connection with the decision now on appeal. VA's duty to assist requires it to provide a medical examination and/or medical opinion when the evidence shows evidence of (a) a current disability, (b) evidence that the Veteran suffered an in-service incident, illness, or injury, and (c) some indication that the first two elements may be related. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this matter, because the evidence of record at the time of the decision did not support a current disability, VA's duty to assist did not require it to provide such an examination or opinion prior to the decision being issued. The Board has carefully reviewed the evidence of record at the time of the decision and finds no evidence of a current bilateral foot condition. Thus, the third criterion of service connection is also not met. In sum, the Board finds that, based on the evidence of record at the time of the decision on appeal, the record does not support a current bilateral foot disability. As such, the claim must be denied. 2. Entitlement to service connection for a right hip condition as secondary to bilateral flat feet 3. Entitlement to service connection for a left hip condition as secondary to bilateral flat feet 4. Entitlement to service connection for a right knee condition as secondary to bilateral flat feet The Veteran seeks secondary service connection for right and left hip conditions, and a right knee disorder. He contends these disabilities are related to his bilateral fleet disorder. The Board finds that service connection is not warranted for any of these conditions. As noted above, the Board finds that service connection for the Veteran's claimed bilateral flat feet must be denied. As such, he cannot be granted service connection for these claims on a secondary basis to that disability. Although the Veteran is not entitled to service connection for a bilateral hip and right knee disorders based on secondary service connection, he is not precluded from demonstrating that these conditions were proximately due to an in-service illness, event or injury. However, the competent evidence fails to establish a relationship between active duty and these disorders. First, the Board finds that he has current diagnoses for the above conditions. Specifically, in private treatment records dated March 2018, he was diagnosed with osteoarthritis of the right knee. Moreover, he submitted evidence dated June 2020 from a private clinician who diagnosed him with bilateral hip pain and arthritis. Thus, the first criterion of service connection, a current diagnosis, has been met. Next, the Board finds that the Veteran's bilateral hip and right knee conditions were not shown in service. Specifically, the Veteran's Army National Guard enlistment examination from November 1978 does not include any complaints of these disorders. While the examiner noted a history of left knee pain, there was no complaints regarding the right knee. In his November 1983 report of medical history, he did say "yes" to knee trouble and cramped legs. However, the examiner specified these complaints are related to his left knee, to include a history of outpatient surgery. Overall, the Veteran reported his health as "Good." Moreover, the November 1983 examiner noted his lower extremities, feet and musculoskeletal areas to be "normal." Furthermore, the evidence of record does not contain a diagnosis for a right knee and bilateral hip disorders until 2018 and 2020, respectively. These conditions were all diagnosed approximately 34 to 36 years after his service in the Army National Guard. Therefore, continuity of symptoms since service is not shown. Indeed, the Veteran has not asserted that he has had any of these conditions since service. Next, service connection may be granted if the evidence otherwise reflects that the Veteran's right knee and bilateral hip disorders are related to service. However, after a review of all available evidence, service connection is not warranted on this basis. Specifically, there is no evidence of record to indicate that the Veteran's disorders are related to his service. Unfortunately, there is no evidence of an in-service incident, illness or injury. As such, the RO did not provide a VA examination in connection to these claimed disorders. As noted above, the Veteran's statements indicate he believes these disorders are related to his claimed flat feet condition. In this matter, because the evidence of record at the time of the decision on appeal did not support an in-service incident, illness, or injury, VA's duty to assist did not require it to provide examinations or opinions prior to the decision being issued. McLendon, 20 Vet. App. 79 (2006). The Board has carefully reviewed the evidence of record at the time of the decision and finds nothing to connect the Veteran's diagnosed right knee and bilateral hip disorders to any incident of active service. Thus, the third criterion of service connection is also not met. Unfortunately, the Veteran has not submitted a private opinion linking these disorders to active service. Nor has he provided lay statements describing these conditions or injuries suffered during his service. The Board acknowledges the Veteran's belief, by filing this claim, that these disorders are related to active service but finds this of no probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his claimed disorders. Especially in light of the fact that the evidence fails to demonstrate any current bilateral foot disability prior to the decision on appeal, or any incident affecting the hips and right knee during service. See id. In sum, the Board finds that, based on the evidence of record at the time of the decision on appeal, the record does not support a current bilateral foot disability, nor any incident, illness, or injury in-service to which his diagnosed right knee and bilateral hip condition could be etiologically linked, or any nexus connection his disorders to service. As such, the claim must be denied at this time. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald