The preponderance of the evidence is against finding that a bilateral foot condition began during active service, or is otherwise related to an in-service injury or disease.
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Citation Nr: 19187083 Decision Date: 11/19/19 Archive Date: 11/19/19 DOCKET NO. 17-51 204 DATE: November 19, 2019 ORDER Entitlement to service connection for a bilateral foot condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral foot condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral foot condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1977 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). The Veteran testified before the undersigned Veterans Law Judge at a Board Hearing in July 2018. A transcript is of record. In February 2019, the Board remanded this claim for additional development. The Board also remanded a claim for service connection for right knee osteoarthritis. This benefit was granted in full in a September 2019 rating decision, appellate consideration of that issue is no longer warranted. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for a bilateral foot condition The Veteran seeks service connection for a bilateral foot condition. The Veteran contends that her foot condition started during service. She asserts that her foot pain started as the result of wear and tear from running and other physical activities during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of pes planus, hallux valgus, plantar fasciitis, and onychomycosis, and evidence shows that she complained of foot pain and calluses in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records show that the Veteran sought treatment for right foot pain and calluses in February 1978. The clinical impression was rule out calluses formation. Another February 1978 clinic note shows a complaint of swollen ankle. Mild fascial tenderness was noted. The clinical impression appears to have been rule out stretched arches. Service treatment records are otherwise silent for treatment or diagnosis of a foot condition. Private treatment records show the Veteran was not diagnosed with a foot condition until August 1989, years after her separation from service. Post-service podiatry notes dated August 1989 show the Veteran sought treatment for bilateral ingrown hallux and nails. In May 1998, the Veteran sought treatment for increasing right heel pain, acute for at least the prior three weeks. The Veteran reported that with job changes and increased ambulation she had had increasing heel pain. X-rays were negative for spur or osseous calcification. The examiner diagnosed acute plantar fasciitis, right foot. In September 1998, the Veteran underwent a VA examination. The Veteran reported that she had her big toenails removed in 1989 and 1994, as the nails were ingrown. She reported that the nails grew back thickened and discolored. She also reported calluses on the soles of the feet, and that shoe inserts had not been of help. The examiner noted the Veteran was diagnosed with plantar fasciitis of the right foot and pain under the heel. The examiner diagnosed bilateral pes planus, bilateral hallux valgus deformities, right plantar fasciitis, calluses, and onychomycosis of the big toe nails. Private treatment notes from Shady Grove Podiatry reveal ongoing foot treatment for foot pain and fungal infections. In a May 2018 statement, Dr. Bash opined that the Veteran’s plantar fasciitis is due to service. He asserted that service treatment records show entries in service for fasciitis, casting of the right ankle, and that X-ray of the right foot in February 1978 was negative. He also noted that medical records showed the Veteran had right foot pain and characteristic callous in service, her post-service records corroborate chronic fasciitis in June 1968, and records from Dr. Footer show residual callous from her walking on fallen arches. He further opined that the Veteran injured the arches in her feet in service, and that this resulted in her current foot disabilities. He concluded that his opinion was consistent with the Veteran’s lay statements. He did not address the current fungal conditions of onychomycosis and onychogryphosis affecting the bilateral feet and hallux toenails. The Veteran submitted a disability benefits questionnaire (DBQ) completed in May 2018. The physician’s name is illegible. The physician wrote “Flat Feet Plantar Fosat’s since service.” At the hearing in July 2018, the Veteran asserted that she noticed discolored toenails after she left military service. She also testified that she did not see calluses on her feet during service, but afterwards, although she believes that they are related to service. The Veteran testified that she initially sought treatment in 1989 after her feet had been bothering her for some time; it was then that she was found to have plantar fasciitis and also had a toenail removed. The Veteran underwent a VA examination in August 2019. The medical history section of the VA examination report reveals the Veteran reported she had foot pain in service due to extensive training and exercises. The Veteran reported that she had had ingrown toe nails removed three times since. The examiner diagnosed flat foot (pes planus), hallux valgus, and plantar fasciitis and noted that the Veteran also has fungus on her bilateral great toes. The examiner opined that the Veteran’s foot conditions were less likely than not related to active service. The examiner explained that the calluses with pain during active service was acute only. Treatment records did not show complaints, diagnoses, or treatment for the other conditions claimed, and there was no chronicity of care for the foot calluses noted in service. The examiner also noted that the diagnosis of plantar fasciitis was in 1989, years after discharge. The examiner continued that there was not enough to connect the current foot conditions to the calluses noted in active duty. He concluded that a nexus was not established. Separately, the examiner addressed the opinion from Dr. Bash. The examiner explained that service treatment records and post-service medical records were not consistent with Dr. Bash’s opinion. He noted that service treatment records showed only one event of complaints of right foot calluses, and that treatment records did not support a diagnosis of foot conditions during active duty or immediately after discharge. He explained that to be able to form an opinion on nature or etiology of foot conditions, objective evidence of treatment and care between year 1980 and 1989 would be needed. The examiner further explained there are various risk factors and causes for the claimed conditions. For plantar fasciitis, risk factors include age, obesity, foot mechanics, and certain types of exercises that place a lot of stress on the heel and attached tissue. Risk factors for calluses include hammer toes, bunion, foot deformities such as bone spurs, pressure and friction, and ill-fitting shoes. Flat feet could be hereditary, and some health conditions such as rheumatoid arthritis, broken or dislocated bones, and nerve problems could be risk factors. Finally, with respect to onychomycosis infections, risk factors include having a history of athlete’s foot, sweating heavily, slower growing nails, walking barefoot in damp communal areas, having diabetes, and circulation problems. While the examiner did not explicitly refer to the Veteran’s lay statements in the rationale, they were considered in substance: namely in the medical history the examiner noted that the Veteran reported that onset of foot problems during active service. Based on the totality of the Veteran’s disability picture, however, it was explained that acute foot pain in service was less likely than not related to her current foot disabilities. Thus, the Board finds no error in this regard. The record contains conflicting medical opinions regarding whether the Veteran’s bilateral foot conditions are at least as likely as not related to an in-service injury, event, or disease, including the wear and tear during running and other physical activities during active service. The August 2019 VA examiner opined that it was not. The examiner explained service treatment records showed only a single acute episode of foot pain and callus complaints. The examiner noted in the medical history of the examination that the Veteran reported persistent foot pain since service, but also noted that service treatment records revealed only one acute episode of foot complaints during active service. Finally, the examiner explained that each of the claimed conditions had multiple risk factors that might explain the development of each condition. The VA examiner’s opinion is probative, because 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). Private practitioner Dr. Bash opined that it was. Dr. Bash explained the Veteran’s fasciitis condition could be caused by injury during physical exercise, and that physical injury during active service was consistent with the Veteran’s lay statement regarding the onset of her foot pain. This opinion is, however, less probative than the VA examiner’s opinion. While Dr. Bash indicates he reviewed the Veteran’s claim record, there is no indication that Dr. Bash physically examined the Veteran. Additionally, the opinion appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA service treatment records and private treatment records that show a limited acute episode of foot pain during active service. Contrary to Dr. Bash’s statement, service treatment records do not show clinical entries of fasciitis. Additionally, subsequent treatment notes in 1998 indicate the Veteran relayed that her foot pain was related to a change of duties and increased ambulation at her current job at that time as a post office worker. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the August 2019 VA examiner’s opinion. To the extent that the May 2018 DBQ attempts to link plantar fasciitis and flat feet to service, it is not probative. The clinician offered no rationale for the opinion expressed. There is no indication from the report that the clinician had the opportunity to review the claim file so as to render a well-informed informed opinion. Given such, the opinion is neither probative nor persuasive. More probative weight is given to the August 2019 VA examiner’s opinion. The Veteran believes her foot conditions are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2019 VA examiner’s opinion. Accordingly, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine does not apply. Service connection for a foot condition is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate 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.