Citation Nr: 1319416 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-24 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left foot disorder, other than pes planus or a fracture of the left fifth metatarsal, based on a reopened claim therefor. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board by its August 2011 decision, in pertinent part, granted service connection for pes planus and determined that new and material evidence had been received by VA with which to reopen a previously denied claim for service connection for a left foot disorder other than pes planus. That reopened claim was then remanded to the RO via the VA's Appeals Management Center (AMC) so that additional development could be undertaken. Following the AMC's attempts to complete the requested actions, the case was returned to the Board for further review, and again remanded by the Board in August 2012 for, among other things, clarifying medical opinion. The matter has now been returned once again for final review. FINDING OF FACT Current left foot disablement involving arthritis of the great toe and a calcaneal spur, as entities separate and apart from service-connected pes planus and residuals of a fracture of the left fifth metatarsal, at least as likely as not originated in service or is proximately due to or the result of a service-connected fracture of the left fifth metatarsal. CONCLUSION OF LAW Left foot disorders involving arthritis of the great toe and a calcaneal spur were incurred in service or are proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the disposition herein reached is favorable to the Veteran-appellant, the need to discuss the VA's efforts to comply with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), as codified in the United States Code, its implementing regulations, or the body of law interpretive thereof, is obviated. The same is true with respect to substantial compliance by the AMC or RO with the prior directives of the Board in previous remands. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Alternatively, the nexus between service and the current disability may be satisfied by medical or lay evidence of continuous symptoms and medical evidence of a nexus between the present disability and those symptoms. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of existing service-connected disability. 38 C.F.R. § 3.310. Here, service connection has previously been established for two left foot disorders, including pes planus and residuals of a fracture of the fifth metatarsal. The Veteran's principal allegation is that he suffers from pain from separate left foot disablement, noting that his pain and other manifestations originated while he remained on active duty. Pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The questions presented by this appeal are whether there is in existence any other, separate left foot disability and what relationship, if any, any such disability bears to military service or service-connected disablement. As set forth in detail below, the record establishes the existence of separate left foot disorders, inclusive of great toe or first metatarsophalangeal joint arthritis and a calcaneal spur, and while the record contains evidence both for and against a nexus of those disorders to service or service-connected disability, on balance the record is at least in relative equipoise as to warrant service connection for each such disorder. Service treatment records identify various complaints of left foot pain, but without a showing of left foot or big toe arthritis or a calcaneal spur. The foregoing were initially identified many years after service, but that notwithstanding, the Veteran has credibly described left foot pain and other manifestations of service origin which treating medical professionals have linked to his arthritis and/or calcaneal spur and to his period of military service or service-connected disablement. There is medical evidence dating left foot arthritis to 2005 and a private treating physician in May 2008 associated the Veteran complaints of left foot pain to, one or more entities, inclusive of arthritis. VA evaluation in August 2008 revealed, in pertinent part, a calcaneal spur of the left foot, as well as narrowing and osteophyte formation in the area of the first metatarsophalangeal joint on the left. In July 2009 and September 2012, a treating VA physician determined that it was as likely as not that the Veteran's left foot pain originated in service and that there was also present a heel spur and arthritis of the left foot which as likely as not were of service origin or caused by the previous left fifth metatarsal fracture. VA examination in September 2011 confirmed the presence of degenerative or traumatic arthritis of the left foot and a calcaneal spur, although it was the opinion of the VA examiner that the Veteran's complaints of pain and achiness in the lateral aspect of his left foot were consistent with the prior left fifth metatarsal fracture; no opinion regarding the Veteran's left foot arthritis and calcaneal spur was provided. Additional VA medical opinion obtained in September 2012 was that it was less likely as not that the Veteran's left foot arthritis and calcaneal spur were service related or proximately due to or the result of service-connected disability, finding specifically that there was no evidence of such. Notwithstanding the above-cited September 2012 opinion, there clearly is evidence, both testimonial lay evidence, as well as competent medical evidence, as to the nexus of a left foot calcaneal spur and big toe arthritis to service and/or service-connected disability involving a fracture of the left fifth metatarsal. The evidence supportive of entitlement is quantitatively and qualitatively equal with that evidence contraindicating entitlement, and, with resolution of reasonable doubt in the Veteran's favor, grants of service connection for left foot arthritis and a calcaneal spur of the left foot are found to be in order. (CONTINUED ON NEXT PAGE) ORDER Service connection for left great toe arthritis and a calcaneal spur of the left foot are granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs